Scottish Court of Session Decisions

Lord President—This is an action of damages against the Superintendent of Police for the county of Kinross, founded on allegations that the defender. on Sunday the 8d February 1867, illegally entered the pursuer's house in Kinross in search of the pursuer; and farther, that on Monday following he apprehended the pursuer, acting on both occasions without any warrant, and therefore illegally and oppressively.

The Sheriff-substitute found for the pursuer, and assessed the damages at £6. The Sheriff altered that interlocutor, and assoilzied the defender. The Lord Ordinary has returned to the interlocutor of the Sheriff, and the question between these competing judgments is one of some ninety.

The pursuer is a carrier, and at the time of these proceedings he had a dwelling-house in Kinross. He had a horse and cart, and he was employed by a person named Gordon, a flesher in Milnathort, to deliver some meat in Burntisland, and receive the price, and bring it to his employer Gordon. He was to deliver the meat on Thursday and come back on Friday. He did not come back on Friday, but was at home all that day in Kinross until four o'clock in the afternoon. Kinross is only two miles from Milnathort. On the afternoon of Friday he went by train to Bridge of Earn. There he remained until Monday afternoon, and nothing in the meantime was heard of the money. In these circumstances Gordon was alarmed and put to inconvenience, and, under the impression that the man had absconded, he put himself in the hands of the Superintendent of Police. His wife went and stated the matter to him, and it was in these circumstances that the proceedings complained, of were taken.

It appears to me that if the Superintendent of Police had reasonable ground for believing that this man intended to appropriate money, and in the execution of that intention had absconded, it was right in him, and within the scope of his duty, to take the most prompt and vigorous means to secure the culprit, and the case turns on the question whether there was reasonable ground. Now, the event certainly goes far to justify that belief; for, when the pursuer came back on the Monday and was apprehended, he had spent part of the money belonging to Gordon. Although the case is narrow, I am inclined to agree with the Sheriff. I think the Superintendent of Police had reasonable ground for suspecting that this man had committed a criminal breach of trust and intended to abscond. He went to search for the man on the Sunday at his own house. He could get no warrant on that day. I think he was justified in going to see if the man was at home. The man was not there. His wife gave no very definite answer where he was, and when the defender expressed some incredulity, she said, you may go and look for him. On the Monday he was apprehended and locked up in a police cell. It is part of the complaint of the pursuer that he was there for two hours. I think that was a good deal the pursuer's own doing, for as soon as the defender came to converse with him, he desired that Gordon might be sent for, and it was this sending for Gordon that caused the delay in the Superintendent either bringing the pursuer before a magistrate or getting a warrant. In the end he was liberated, Gordon being satisfied about the money.

It is not necessary to proceed on the same ground as the Sheriff does. He puts the justification of the Superintendent on the 12th section of the County Police Act. I am not satisfied that that section imports any new law, or extends the power of police constables to apprehend without a warrant. I think that, under special circumstances, a police constable is entitled to make an apprehension without a warrant, and it will always be a question for the Court whether the circumstances justify the proceeding. There is no doubt, in some cases—as where a man is suspected of murder or some such crime—there it would be a breach of duty not to apprehend him. This is a different case, and we must look for the justification of the constable to the special circumstances. I place his justification more on common law that on Statute. No doubt, his duties are defined in that section, but it is on common law that his right mainly depends, and on that ground I come to the conclusion that he did not act illegally and oppressively, although acting without a special warrant.

Lord Deas—I come to the same conclusion as your Lordship has done.

This case involves questions of some delicacy as to the powers and duties of police constables, particularly with reference to the General Police Act. From the interlocutor and note of the Sheriff I should rather infer that the notion has got abroad that under this General Police Act police constables may apprehend any one they think proper on their own accusation or suspicion without any right warrant. The Sheriff quotes the Act, and then says:—“The powers and duties thus attached to the office of a county constable are much higher and more extensive than those of a constable under the common law, and are conferred in addition to those at common law (see 11). Plainly, these powers are to be exercised without any warrant other than the Statute itself. The Sheriff understands that in the county of Edinburgh (and the same maybe the practice in other counties), almost all those persons who are ultimately charged with crimes are, without any written warrant, apprehended by the constables and brought to the central police office, and there detained in custody until a petition is framed and presented to the Sheriff, and a warrant granted thereupon.” I don't find any such powers as that conferred by this section. I have great doubt if it was intended materially to extend the power of police constables to apprehend without warrant. Section 12 is more directed to other things. It is mainly directed to give power or to declare a power to apprehend persons accused “or suspected of having committed crimes, delinquencies or offences of whatsoever description, and at what place soever the same may have been, or are suspected to have been, committed, whether the same be of such a kind as can competently be tried before such sheriff or justices, or be of a nature requiring to be remitted for trial before a higher tribunal, or which, from having been committed beyond the bounds of the county, fall to be tried in another jurisdiction.” Any extension of power in the section is directed more to these things than to apprehension without a warrant. It is true that it speaks of apprehending persons accused or suspected of having committed crime, but

Page: 88↓