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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Girdwood v. The Standing Joint - Committee of Midlothian [1894] ScotLR 32_14 (25 October 1894) URL: http://www.bailii.org/scot/cases/ScotCS/1894/32SLR0014.html Cite as: [1894] SLR 32_14, [1894] ScotLR 32_14 |
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Page: 14↓
Held that the standing joint-committee of a county is not responsible for wrongous acts committed by police constables of the county when on duty.
This was an action of damages at the instance of Mrs Jessie Girdwood against the Standing Joint-committee of the county of Midlothian, appointed in terms of the Local Government (Scotland) Act 1889, and the individual members of the Committee.
The pursuer averred that the Committee “employ and pay and have the administration and control of the police of the said county.” She sought damages on the ground that upon 29th November 1893 two police constables “in the employment of the defenders” upon a false charge had taken her for several miles round the country for the alleged purpose of identification, and that she had suffered greatly in her character, reputation, feelings, and health. She averred that the police constables “in their reckless and oppressive conduct aforesaid acted maliciously and without probable or any cause.”
The defenders averred—“The terms of the Police Act 1857 (20 and 21 Vict. cap. 72) are referred to. A police committee under that Act was not, and a standing joint - committee is not, liable for the actings of a member of the police force in the course of his employment. The committee has no power to raise money by rate or loan. It is not a body corporate, but simply a statutory board of managers, whose very limited functions are mainly advisary. The disposition and government of the members of the police force of the county are in the hands of the chief constable, subject to such lawful orders as he may receive from the sheriff, or from the justices of the peace in General or Quarter Sessions assembled, and to the rules established
Page: 15↓
for the government of the force by the Secretary for Scotland. The standing joint-committee is not vested with the actual control, management, or disposition of the county police force. The policemen are neither appointed nor dismissed by the committee, and are not its servants. The committee has no right nor power to interfere with the members of the police force in their actings, and is not responsible for the same.” The defenders pleaded, inter alia—“(3) The defenders should be assoilzied, in respect that the policemen named on record are not servants of the committee, and that the committee is not responsible for their actings.”
Upon 7th July 1894 the Lord Ordinary sustained the third plea-in-law for the defenders, and assoilzied them from the conclusions of the action.
“ Opinion.—The question in this case is, whether an action lies against the Standing Joint-Committee of the County of Mid—Lothian, or against the individual members of that Committee, for fault alleged to have been committed by police constables of the county acting within the scope of their duty, but not in furtherance of any special order issued by the Committee or by any of its members. I am of opinion that no action lies in these circumstances.
“The constitution and functions and relation to the county police of the standing joint committee of a county depend on the provisions of the Local Government Act and of the County Police Act.
“The standing joint committee is created by the 18th section of the Local Government Act 1889. It is a joint committee of the county council and of the commissioners of supply, and consists of a certain number of county councillors and of commissioners of supply and the sheriff of the county. Certain duties are devolved on it with respect to capital expenditure by the county council, and it is provided that it is to be deemed the police committee under the Police Act 1857, and ‘shall have all the powers of such committee, and be subject to all the provisions of that Act,’ except so far as modified by the Local Government Act. It is not incorporated as, under section 72, the county council is, nor is there any provision that it may sue and be sued, as is provided by section 79 in reference to district committees. It has no funds.
“Turning to the County Police Act 1857 (20 and 21 Vict. c. 72), in order to find the powers of the Standing Joint Committee, it appears that the object of the Act was to secure an efficient police fcrce throughout Scotland, and that with that view it is provided (section 1) that the Commissioners of Supply are to report to a Secretary of State the number of constables proposed by them as a sufficient police force, and the rates of pay which they deem expedient; and (section 2) that they are to appoint a police committee ‘to manage and transact all and any matters which such police committee is hereby required or authorised to do, execute, or perform.’ Section 3 provides that rules for the government of constables are to be made by a Secretary of State. By section 4 the police committee are required, subject to the approval of a Secretary of State, to appoint a chief constable.
“The most important section bearing on the government of police constables is the 6th, which provides that the chief constable ‘shall, subject to the approval of the police committee, appoint the other constables; and that the chief constable may dismiss all or any of them, and that he, the chief constable, ‘shall have the general disposition and government of all constables so to be appointed, subject to such lawful orders as he may receive from the sheriff or from the justices of the peace in General or Quarter Sessions assembled, and to the rules established for the government of the force in terms of this Act.’ By section 15 it is provided that the police constables shall, in addition to their ordinary duties, perform all such duties connected with the police in their respective counties as the sheriff or the justices of the peace of the county may from time to time direct and require.’ It thus appears very clearly that the county police were subject to the control and bound to obey the orders of the chief constable, the Sheriff, and the Justices of the Peace, and that they were not under the control or subject to the orders of the Police Committee, who were not magistrates qua members of the police committee, or entitled to interfere in any way with the police in the fulfilment of their duties. The charge of the peace of the county was not committed to the Police Committee. The duties of the police constables, however, are not only those which the chief constable, sheriff or justices direct, but are embodied in the Act of Parliament. They are not the servants of the chief constable, sheriff, or justices, but of the State, with distinct duties imposed on them by statute.
“Now, the powers and duties of the new body, the standing committee, are those of the police committee under the County Police Act, and, therefore, it appears to me that, when the pursuer avers that the standing committee have the entire management and control of the police force, that is merely a somewhat reckless contradiction of the provisions of the statutes, and not an averment which can be remitted to probation.
“The standing committee have only statutory duties and statutory powers, and the control of the police is not one of them. They have under the statutes no control of the police; the relation of master and servant or of employers and employed does not subsist between the committee and the police, and there is therefore no legal ground on which either the committee or its members can be called on to answer for the errors of the police.
“It is now thirty-seven years since the County Police Act was passed, and no case has been found in which it was attempted to make a police committee liable for the faults of the police.
“Further, the Standing Joint-Committee
Page: 16↓
“Further, the counsel for the defenders directed attention to the fact that the Standing Joint-Committee do not possess or administer any funds whatever out of which the pursuer's claim could be satisfied, and that of itself seems also a conclusive answer to the action.
“I do not, therefore, find it necessary to consider whether fault by the police constables within the scope of their duty is relevantly averred, and I am of opinion, on the grounds explained, that the defenders' third plea-in-law should be sustained, and that they must be assoilzied.”
The pursuer reclaimed, and argued—The Joint-Committee was the body which appointed the police and made the assessment by which they were paid; they were therefore responsible for the action of the police. They were liable to pay for damages occasioned by the actings of their subordinates out of public funds in their hands— Young v. Magistrates of Glasgow, May 16, 1891, 18 R. 825; Leask v. Burt, October 28, 1893, 21 R. 32.
At advising—
The Court adhered.
Counsel for Reclaimer— Watt. Agents— Cuthbert & Marchbank, S.S.C.
Counsel for Respondent— Dundas. Agent— J. H. Balfour-Melville, W.S.
