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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McKinney (AP) v Sharp [2000] ScotCS 152 (9 June 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/152.html Cite as: [2000] ScotCS 152

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[1] This is an appeal at the instance of the defender against an interlocutor of the sheriff dated 27 May 1999 in terms of which, after a proof before answer, the pursuer was found to be entitled to reparation from the defender and damages were assessed at £2,250. The defender is the Chief Constable of Strathclyde Police.

[2] The action arose out of an incident which took place on 11 February 1994. The pursuer had formerly been married to Ann McKinney and there are three children of the marriage, namely, Brian, George and Claire. The marriage was not a happy one due to the pursuer's drinking and violent conduct towards his wife and in July 1993 she left the matrimonial home. In August 1993 she raised an action of divorce against the present pursuer and on 23 August 1993 interim interdict was pronounced. On 30 August 1993 an interlocutor in the following terms was pronounced:

[3] Accordingly, a power of arrest was attached to the interim interdict preventing the present pursuer from molesting his wife but the sheriff refused to attach a power of arrest to the interim interdict preventing the present pursuer from removing the two children out of the control of his wife. George and Claire were residing with Mrs. McKinney and Brian was residing with the pursuer. On 2 November 1993 the pursuer was granted access to Claire and George on Tuesdays and Thursdays and on alternate weekends from 3.30 p.m. on Friday until 6 p.m. on Sunday. His wife had similar access to Brian. The pursuer had had access to George and Claire during the weekend of 4-6 February 1994 and he was due to see them next on Tuesday 15 February.

[4] On Friday 11 February 1994 Mrs. McKinney was exercising access to Brian who was due to be returned to the pursuer at 7 p.m. She was on a bus accompanied by all three children when the pursuer boarded the bus at about 6.30 p.m. and encountered Mrs. McKinney by accident, as he had not known that she was on the bus. The sheriff found in fact that the pursuer spoke to the three children but did not speak to Mrs. McKinney. At about 6.50 p.m. he got up in order to alight from the bus and his son Brian followed him off the bus. As he did so Claire also alighted from the bus and the bus moved away with Mrs. McKinney and George still on board. The pursuer went to his house with the two children. However, Mrs. McKinney was upset because the pursuer had left the bus in the company of Claire, and Claire had not been returned to her. She spoke to her sister and the supervisor of the Women's Aid Refuge where she was staying and was advised to contact the police, which she did. Shortly thereafter Detective Constable John Bowman and Detective Constable Gillian Barclay called at the Refuge and Mrs. McKinney told them that Claire was with the pursuer, that the pursuer had been interdicted from removing the children from her care and control and that a power of arrest had been attached to the interdict. The police officers found Mrs. McKinney to be upset and distressed. Detective Constable Bowman contacted the control room at Hamilton Police Office and was advised that there was an interdict preventing the pursuer from removing the two children and that a power of arrest was attached to the interdict. Mrs. McKinney made no complaint to the police officers that the pursuer had abused her verbally, threatened her or used violence towards her during the encounter on the bus. The police officers went to the pursuer's house where they found him with Brian and Claire. The pursuer told them that no power of arrest existed in relation to the interdict against removing the children but he was unable to produce any documentary evidence to support his assertion. He was then arrested and taken to East Kilbride Police Office and detained in the cells there from 11 February until Monday 14 February 1994 when he appeared at Hamilton Sheriff Court. He was liberated at about noon on that date on the instructions of the procurator-fiscal.

[5] The sheriff found in fact and law that no power existed to justify the pursuer's arrest by the police officers, that the arrest was unlawful and that the pursuer had suffered loss and damage through the fault of the defender. Damages were assessed at £2,250 and there is no challenge to the quantum of the award.

[6] The defender appealed to this court and in the Grounds of Appeal it was alleged that the sheriff should have granted decree of absolvitor and, in particular, that the sheriff (1) erred in holding that the arrest and detention of the pursuer were unlawful; (2) erred in holding that the weight of the evidence was that the pursuer's wife's sole complaint to the police related to the children getting off the bus; (3) erred in holding on the evidence that the arrest and detention proceeded not upon a complaint of molestation but upon interference with the pursuer's custody of the two children and (4) ought to have held on the evidence that the police had reasonable cause for suspecting that the pursuer was in breach of the molestation order.

[7] In the present action a debate had taken place before the sheriff who allowed a proof before answer and, on appeal, the sheriff principal adhered to the sheriff's interlocutor, holding that there was no obligation on the pursuer to aver and prove malice on the part of the police. The defender did not appeal against the sheriff principal's decision.

[8] When the case called on the summar roll counsel for the defender and appellant sought leave to amend the Grounds of Appeal. In particular, it was proposed to add a new Ground of Appeal to the effect that the sheriff principal, when determining relevancy, et separatim the sheriff after proof, had erred (i) in holding that in order to found an action for damages it was not necessary for the pursuer to prove both want of probable cause and malice on the part of the police officers, and (ii) in finding in favour of the pursuer in the absence of proof of malice and want of probable cause. This motion was opposed by counsel for the pursuer and respondent and we refused to allow the Grounds of Appeal to be amended because the proposed amendment came too late. In these circumstances the appeal proceeded and we were addressed by senior counsel for the defender and appellant on the basis of the Grounds of Appeal originally lodged.

[9] In the event, the outcome of the appeal turned on a relatively narrow issue. It was accepted that a power of arrest had been attached to the interim interdict preventing the pursuer from molesting Mrs. McKinney but that no power of arrest had been attached to the interim interdict preventing removal of the children in her care. Senior counsel for the defender accepted, under reference to section 15(3) of the Matrimonial Homes (Family Protection)(Scotland) Act 1981, that the critical question in the appeal was whether or not the police officers had reasonable cause for suspecting that the pursuer had been in breach of the interim interdict against molestation. Counsel initially submitted that allowance should be made for the possibility that the police officers had simply misunderstood the terms of the interim interdicts. His argument, counsel conceded, was in effect that allowance should be made for "a margin of misunderstanding" on the part of the police. However, counsel later retracted that submission and accepted that, for the defender to succeed in the appeal, it must be shown that the police officers had reasonable grounds for suspecting that there had been a breach of the interdict which had actually been pronounced and to which a power of arrest had been attached. As no power of arrest had been attached to the interdict relating to the removal of the children, it followed that the police officers had to have had reasonable grounds for suspecting that the pursuer had been in breach of the interim interdict which prohibited him "from molesting the pursuer by abusing her verbally, threatening her thereby putting her into a state of fear and alarm or distress or using violence towards her". Finding in fact 10 stated inter alia that when the police officers saw Mrs McKinney they found her to be upset and distressed. Finding in fact 9 contained the following statement:

Finding in fact 11 is in the following terms:

Counsel proposed certain alterations to the sheriff's findings in fact 10, 11 and 12 and conceded that, for the appeal to succeed, he would have to be able to satisfy the court that the sheriff's findings in fact should be altered.

[10] In particular, the defender and appellant proposed to add at the end of finding 11 the following sentence:

It was also proposed to insert in finding in fact 10 a statement to the effect that the account which Mrs McKinney had given to the police officers about what had occurred on the bus included the fact that she had become distressed because the pursuer had come onto and remained on the bus.

[11] We were referred by counsel for the defender and appellant to the transcript of the evidence and, in particular, to the evidence of Mrs. McKinney and the two police officers. So far as Mrs. McKinney's evidence is concerned, she stated that when the police officers arrived she was crying but it was clear from her evidence that what had upset her was the fact that Claire had left the bus with the pursuer and had not been returned to her, the pursuer not being entitled to access to Claire at that time. She accepted that the pursuer had got off the bus with Brian and that Claire had just followed them.

[12] Detective Constable Bowman gave evidence that he had reasonable cause to arrest the pursuer for breach of the matrimonial interdict, namely "the fact of putting his wife in a state of fear and alarm by removing the children from her custody". He stated that, on the basis of the information which he had been given by Mrs. McKinney, the pursuer had "put her in a state of fear and alarm or distress". He said that he had seen Mrs McKinney in a state of fear and alarm or distress and that he had considered that that was a breach of the interdict. He had telephoned the police office and the terms of the interdict had been read over to him.

[13] Detective Constable Barclay gave evidence that Mrs. McKinney had seemed quite distressed. Mrs. McKinney had told her that the pursuer had got on the bus and sat in quite close proximity to her. The children had gone to speak to him and when the pursuer went to get off the bus two of the children went along with him against her wishes. Detective Constable Barclay stated that Mrs. McKinney appeared to be quite distressed at the fact that the pursuer had got on the bus and was sitting in close proximity to her and agreed that it was her view that "because she was distressed that fell within the ambit of the interdict". She went on to state that her understanding was "that the interdict with the power of arrest attached was not to place her in a state of fear and alarm or distress". She gave evidence that she understood that the pursuer would be "in breach of his interdict" if his presence on the bus placed Mrs. McKinney in a state of fear and alarm or distress, and that if the pursuer had seen Mrs. McKinney on the bus he should have immediately left the bus.

[14] On the basis of all the evidence to which we were referred we consider that the sheriff's findings in fact were fully justified. Further, even if we had been persuaded to allow the proposed addition to finding in fact 11, we do not consider that that would have materially assisted the appellant's case.

[15] Counsel for the defender and appellant submitted, under reference to Donaldson v. Miller 2000 S.L.T. 622, that the terms of the interdict against molestation should be construed broadly. He further submitted that, on the evidence, the pursuer's conduct could be described as having been "threatening" and that the police would have been justified in taking the view that he had been acting in a threatening manner, threats not being limited to verbal threats. However, he conceded that neither of the police officers had given evidence to that effect, nor had Mrs. McKinney. Counsel then went on to submit that the police officers had understood that the interdict prohibited the pursuer from behaving in a way that caused Mrs. McKinney fear and alarm or distress, and that was a possible construction of the interdict. Counsel did accept, however, that if that was not a possible construction of the interdict, then they had no power to arrest the pursuer without a warrant and the appeal would fail. In this connection, he said that a possible construction of the interdict was a construction which a lawyer might put on it. He frankly conceded that if what the police understood had happened was not capable of constituting a breach of the interdict to which a power of arrest had been attached, then the appeal could not succeed.

[16] In our opinion, on the basis of the sheriff's findings in fact, the police officers did not have reasonable cause to suspect that the pursuer was in breach of the interim interdict against molestation to which a power of arrest had been attached, and accordingly the sheriff was right to hold that they did not have power to arrest the pursuer without a warrant and that his arrest was unlawful. Further, having considered the evidence of Mrs. McKinney and the two police officers to which we were referred by counsel for the defender, it was, in our view, established that Mrs. McKinney's distress was caused by the fact that Claire had left the bus with the pursuer and had not been returned to her. There was no evidence that the pursuer had abused her verbally, or threatened her or used violence towards her. It is also clear that both police officers had misunderstood the effect of the interim interdict against molestation in respect that they both took the view that any action on the part of the pursuer which caused Mrs. McKinney fear and alarm or distress constituted a breach of the interim interdict. In our opinion, the contentions of counsel for the defender and appellant to the effect (1) that it was a possible construction of the interim interdict against molestation that the pursuer would be in breach if any action on his part caused Mrs. McKinney fear and alarm or distress and (2) that, in any event, the pursuer's actions could reasonably have been regarded as constituting threatening behaviour, are entirely devoid of merit. In these circumstances we did not feel it necessary to call on counsel for the pursuer and respondent and we refused the appeal.