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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Middleton & Ors v. Brown & Ors [2004] ScotCS 276 (24 December 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/276.html Cite as: [2004] ScotCS 276 |
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OUTER HOUSE, COURT OF SESSION |
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A1077/02
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OPINION OF LORD McEWAN in the cause JOHN JOSEPH MIDDLETON (AP) & OTHERS Pursuers; against ANDREW BROWN & OTHERS Defenders:
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Pursuers: Stewart, Q.C., Lindhorst; Campbell Smith & Co, W.S.
Defenders: R Milligan; Simpson & Marwick
24 December 2004
[1] In this case the pursuers are all members of a family who were the subject of a drugs "hit" at the instance of the Customs and Excise and the Scottish Crime Squad in November 1998. The first pursuer (whom I shall call the father) was the main target. The second pursuer (whom I call the mother) sues in her own right and also on behalf of the autistic child (Arran) of herself and the father. The third pursuer (whom I shall call the daughter) is the child of the mother. The last pursuer (whom I call the brother) is so related to the father. It is averred that they were all engaged together in various capacities in successful businesses in the Central Belt. These were as varied as a telephone business to one involving motorcycles and finally a catering enterprise.[2] The Record goes on to aver that in September 1997 the Customs and police made an early morning raid on the pursuer's home, Bourtree Bush, by Forfar. They were looking for drugs. None were found. It is averred (7F to 8A) that when the father pointed out to the police that none would be found, the officer in charge (Detective Sergeant Birnie) replied "...I could always make sure I do....". The father thereafter became fearful that drugs would somehow be planted on him. The averments continue that in 1998 operation "CAB" was conducted which involved surveillance for almost a year on Bourtree Bush. A number of police officers from the Scottish Crime Squad took part included in whom were Birnie, Detective Constable Ritchie and Woman Detective Constable Campbell. This operation caused the father to be afraid and paranoid. It is further alleged that in March 1998 Birnie further warned him "....that he had better be careful something was not found on him which he did not expect to be found on him...." (8C/D). It was accepted in the debate before me that in these operations and what followed the three named police officers were acting only under the directions of the first defender who was the chief constable of Grampian Police. The other defenders would have to be released from the action.
[3] I now move to what is said in Article 4. If true, it is an extraordinary tale. On 6 November 1998 the father went to Glasgow to look at a car. He went in a borrowed car which had a tow bar. On the way at Balhaldie on the A9, he bought Shell petrol, obtaining a receipt (10D/E and 11C). He must have been under surveillance at the time. On his return from Glasgow in the afternoon the father broke down near Stirling. While awaiting the AA two traffic police stopped. Birnie was observing from nearby and he told the traffic officers to search the car. Nothing was found but the father was taken to Stirling Police Office and searched. Drugs officers again searched the car and nothing was found. Ritchie and Campbell then uplifted the vehicle and kept it.
[4] At this point the account should be moved to Bourtree Bush. About 4.00pm that afternoon the mother and daughter were approaching their home when a large number of police stopped them and searched the house. (Much later on at Forfar they were personally searched). However, at 4.10pm Detective Constable Waghorn told the mother that her husband had been found in possession of "... a large quantity of drugs....". The inference was that Birnie had told this to Waghorn to authorise the search. The search then made, and which was continued later, found no drugs. When the mother was taken to Forfar it is alleged that Birnie said to her
"... who do you think you are, you two coming from your background living in this house. Your business will fail now and you'll lose your house. I'm going to take it all, money, house, shop, everything, you'll be left with fuck all...."
and later after interview ".... I'm only letting you go because you have a disabled son...". Birnie is alleged at or about the same time to have said to the father "...You're fucked now, its all over, house, cars, the lot...".
[5] Let me now move the account back in time to earlier the same day in Stirling. Ritchie and Campbell had the car. The car was taken to Stirling by them and left in police custody and control. Ritchie and Campbell then searched the car and at 4.25 p.m. told Birnie they had found drugs in a P.C. World plastic bag which also had a petrol receipt from the Shell station. It is said the items were concealed under the gearstick cover. There then follow averments about where the plastic bag had been when the car was stopped and what was said between the police themselves about the receipt. It is also alleged a police notebook was altered and evidence changed at a later trial. The importance of these averments is in the timing particularly, and the other details. The find post-dates Waghorn's remarks by many minutes, he having been told by radio that the father had been arrested with drugs.[6] In opening for the defenders, Mr Milligan asked me to dismiss the actions against the second and third defenders. He accepted that there was a relevant case by the first pursuer but that certain averments of malice should be excluded. He asked me to dismiss the action laid by the second, third and fourth pursuers against the first defender.
[7] Moving to the record he said (correctly) that the case concerned averments of malice and want of probable cause, in the behaviour of the police. The test of malice was a high one for good public policy reasons. He referred me to McKie v Orr 2003 SC 317 at 319 and to Karling v Purdue unreported Outer House 29 September 2004. In the present case, it was accepted that if drugs had been "planted" on the first pursuer that would be evidence of malice. Lack of probable cause followed. The only issue, said counsel, was whether it was relevantly averred that Birnie had acted maliciously. It was not enough to say that malicious acts towards the first pursuer would necessarily have consequences for the other pursuers whose claims were merely derivative. There were no averments that the three police officers were acting in concert or that there was any conspiracy.
[8] Counsel then went on to criticise the use of the formula "believed and averred" at 11/12 of the record. There was no basis for any malice by Birnie and his remarks did not amount to malice. The only false information had been given by Campbell and Ritchie. Mr Milligan then criticised certain averments on page 21 and what he described as the derivative claims of some of the pursuers. In particular he stressed that no malice was averred in respect of the second to fourth pursuers. The wages loss claim for the fourth pursuer was purely derivative (Reavis v Clan Line Steamers 1925 SC 725). He then made certain detailed motions on what pleas to sustain and what averments to delete.
[9] For the pursuers, Mr Stewart accepted that there was no relevant case by any pursuer against the second and third defenders but that otherwise there should be proof before answer. He accepted that some averments would require to be deleted.
[10] He said there were sufficient averments to instruct claims based on Birnie's actings and those of Ritchie and Campbell. It was not necessary to use the word "malice" (Harvey v Sturgeon 1912 SC 974 and Shields v Shearer 1914 SC (H.L.) 33). Birnie was in charge and had made his intentions clear (page 8). It could be inferred he had fore knowledge of the discovering of the drugs and he made a false report as to where the petrol receipt had been found. That was enough to allow the first pursuer's case to proceed.
[11] So far as the remaining pursuers were concerned, the case was not plead in the alternative. It was not obviously irrelevant. There did not have to be direct malice against all of them provided it directly affected them. The police were fully aware of the relationship between the pursuers, both personal and business. The whole matter was tainted by the "plant". The house belonged to the second pursuer and the search was wrongful and again tainted because of the plant. The actions of the police at the house began before the drugs were allegedly found. That was because it could be inferred Birnie had told them of the "find".
[12] The second and third pursuers were directly affected as the house at Bourtree which was searched was their home as was the property inside. So far as the fourth pursuer was concerned the search of his person and the seizure of his property was similarly tainted.
[13] I was referred in passing to a number of cases and I can deal briefly with them now. Shields v Shearer concerned the arrest of the pursuer by the Glasgow police because he had been in possession of a watch. The point in issue was whether the police could have had a reasonable suspicion because of the furtive behaviour of the pursuer and what he said to them. The question was what form the issue for jury trial should take. Lord Dunedin at 35 showed how "malice" can arise and his second example mirrors the facts of this case. Lord Shaw said at 37, that it was not necessary to use the word "malice" in the issue. Again that fits with what was done here. Harvey v Sturgeon is to the same effect, on there being no need to use the word "malice". The unfortunate pursuer had been wrongfully detained by the Glasgow police when in possession of his own mother's clock! Like the present case the facts showed a history of the police watching him, the inference being that they knew who he was. (See Lord Salvesen at 977 on"malice"). Karling v Purdue (Temporary Judge J Gordon Reid, 29 September 2004) dealt with the immunity of an expert witness. The Opinion, which is a model of clarity and exposition is not precisely in point for my purposes. McKie v Orr concerned police actions against a former colleague who was suspected of perjury. On its facts malice was not demonstrated. For public policy reasons malice required to pass a very high test. (See 319).
[14] In my view the proper disposal of this case is to allow a proof before answer with certain averments being deleted. Some of these were virtually conceded. The background averments in 1997 set the scene and Birnie's early comment would be bound to arouse anxiety in the pursuers. The officer could not have been unaware of the family arrangement. Thereafter, what happened on 6 November is redolent of malice by Birnie, Ritchie and Campbell for a number of reasons. After the father was stopped no less than four police officers searched his car and found nothing. Only at 4.25 did Ritchie and Campbell make the purported find. Before this Waghorn had been told to detain and search the others at the house on the basis that drugs had already been found. It is a matter of inference that Birnie told him and that he and the others would be aware of the consequences. In my view it is proper to introduce this inference by the formula of "believed and averred". Birnie was, after all, in charge. The averments about the later remarks, the alteration of the police notebook, what was reported to the Fiscal and the change of position at the trial confirms my view on this point. I do not think it is necessary to use the word "malice" as a term of art; and if the actings of all three in Stirling towards the first pursuer are so tainted then what was impliedly instructed to be done at Bourtree was equally tainted towards the other pursuers. They were directly affected by what was done in Stirling and that must have been in Birnie's contemplation. The police do get a high degree of protection in the performance of their duties. There is a presumption of good faith. There has to be, therefore, proper specifications of facts and circumstances giving rise to the inference of malice. In my view the test of relevancy and specification has been amply met. If the pursuer proves "the plant", malice will inevitably follow.
[15] As I indicated certain averments will require to be deleted These relate only to damages where it is sought to make a "derivative" claim for harm done to a third party. This point was treated as axiomatic and the pursuer's counsel did not seek to persuade me otherwise.
[16] In my view, the duties set forth in Article 7 are all relevant. Only the duty at 21B was criticised but in my opinion such an attack is not warranted when counsel conceded there was a relevant case made by the first pursuer against the first defender. The duties owed to the other pursuers clearly follow from what goes before. What in my view is not relevant relates to losses suffered due to the treatment of others and in two other aspects. I will not allow to go to probation: the following viz,
(1) Condescendence 9 the third sentence is held as deleted.
(2) Condescendence 10 in the second sentence the words "... and the imprisonment of his father, the first pursuer".
(3) Condescdence 11 in the second sentence the words "... and the treatment of her mother and the first pursuer". The fourth and fifth sentences are held as deleted.
(4) Condescendence 12, line 2 delete "the search of Bourtree and"; in line 3, "the other pursuers and"; line 13 from the word "prior" to the word "wages" in line 17.
[17] The pleas-in-law will be dealt with as follows. The action, by consent, against the second and third defenders will be dismissed. The second pleas-in-law for these defenders will be sustained and I find it now unnecessary to deal with the remaining pleas-in-law for these defenders.[18] So far as the first defender's pleas are concerned, the first plea-in-law will be repelled for want of insistence. The second plea is sustained only to the extent of excluding the averments already mentioned but quoad ultra before answer on that plea a proof will have to take place allowing the claims of all the pursuers. The first defender's remaining pleas as to fact are left but I think that the fifth plea may now be superseded.
