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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Ryan Mcdonald v. Procurator Fiscal, Dundee [2001] ScotHC 111 (8th November, 2001)
URL: http://www.bailii.org/scot/cases/ScotHC/2001/111.html
Cite as: [2001] ScotHC 111, 2002 SCCR 92, 2001 GWD 40-1515

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JISCBAILII_CASE_CRIME_SCOTLAND

RYAN McDONALD v. PROCURATOR FISCAL, DUNDEE [2001] ScotHC 111 (8th November, 2001)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Philip

Lord Caplan

 

 

 

 

 

 

 

 

 

 

 

 

 

Appeal No: 2148/00

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

in

STATED CASE

in causa

RYAN McDONALD

Appellant;

against

PROCURATOR FISCAL, Dundee

Respondent:

_______

 

 

Appellant: Shead; Purdie & Co.

Respondent: M. Jones, A.D.; Crown Agent

8 November 2001

[1] On 31 July 2000 the appellant was found guilty in the District Court at Dundee on two charges of breach of the peace committed on 20 February 2000. In each case the libel was that he had conducted himself in a disorderly manner, shouted, sworn, threatened police officers with violence and refused to desist. The first charge related to the appellant's conduct in Lothian Crescent, Dundee. The second related to his behaviour at Ninewells Hospital, Dundee.

[2] At the appellant's trial the contention for the defence was that his actions in Lothian Street and thereafter at Ninewells Hospital should be regarded as reactions to unlawful actions on the part of the police.

[3] The circumstances relating to the first charge were described in evidence by the Crown witness, Sergeant Wiggley. He stated in his evidence in chief that he had received a call over his radio that there was a disturbance in one of the multi-storey buildings on Lothian Crescent. When he arrived there was no sign of a disturbance. He went to the concierge box there and saw the appellant walking out on to Lothian Crescent with a bleeding arm wrapped in a towel. The appellant saw him but appeared to be avoiding him. He "trotted" to catch up with the appellant who immediately became aggressive and he then had to take hold of the appellant's uninjured arm. The appellant stated: "I'll do you in if you don't let go of me". The appellant was obviously under the influence of drink and did not want to tell him how he had cut his arm. Thereafter a police constable came on the scene and the appellant was arrested. In cross-examination he said that the appellant was about 20 yards away from him when he first saw him. He accepted that he might have shouted at him, but he could not remember. When he caught up with the appellant he asked him what he had done to his arm. It was his job to find out how the injury had happened. He accepted that there was nothing else about the appellant's conduct which gave rise to suspicions. He got the impression that the appellant did not want anything to do with him. He knew that there had been a disturbance and that the appellant was the only person there when he arrived, and had a cut arm. He accordingly "put two and two together" and made an assumption. There was no one else in the area apart from the concierge and the appellant. The appellant did not want to co-operate. It was his job to make enquiries into the circumstances. In re-examination he sought to give evidence with regard to the nature of the prior incident. However, this was objected to by the defence and the justice did not allow him to give that evidence. In further re-examination the witness said that he was there due to an alleged crime having taken place, and that he suspected that the appellant had been involved in the incident due to the fact that he was coming out of the area where the incident had been reported and had a bleeding arm. He could not ignore this.

[4] Two police constables, including the constable referred to by Sergeant Wiggley, gave evidence as to the way in which the appellant had behaved at Lothian Crescent and at Ninewells Hospital.

[5] In his note relating to the evidence the justice stated that he was convinced that Sergeant Wiggley had a reasonable belief that the appellant had committed an offence. The findings in fact made by the justice were not as extensive as the evidence given by Sergeant Wiggley. However, it appears that he accepted the substance of his evidence. His findings included findings that the witness "had reasonable grounds for suspecting that the appellant had been involved in the earlier incident", and that his action in taking hold of the appellant was not unlawful.

[6] In presenting the appeal Mr. Shead submitted that there was a lack of evidence as to the power which Sergeant Wiggley was exercising, or thought that he was exercising, when he took hold of the appellant. Mr. Shead pointed out that the power of a constable to detain a person under section 14 of the Criminal Procedure (Scotland) Act 1995 depended on whether he had reasonable grounds for suspecting that that person had committed or was committing an offence punishable by imprisonment. Further, in terms of subsection (6), at the time when the constable detained that person, he was to inform him of his suspicion, of the general nature of the offence which he suspected had been or was being committed and of the reason for the detention. In the present case the stated case did not disclose that there were reasonable grounds for suspecting that the appellant was the perpetrator of an offence punishable by imprisonment. There was nothing to indicate what was the general nature of the suspicion. Sergeant Wiggley had not operated the procedure set out in subsection (6). Mr. Shead compared the present circumstances to those in Cardle v. Murray 1993 S.C.C.R. 170 in which the action of a constable in taking hold of the arm of a "break-dancer" was held to be unlawful, there being nothing in his prior conduct which in the view of the constable gave him reason to suspect that he was committing or had committed an offence.

[7] In reply the Advocate depute pointed out that it was not in dispute that Sergeant Wiggley honestly believed that the appellant had committed an offence, which in the circumstances would plainly have been a breach of the peace, an offence punishable by imprisonment. In these circumstances the question was whether there existed reasonable grounds for that belief. This fell to be tested on an objective basis (see Houston v. Carnegie 1999 S.C.C.R. 605). The Advocate depute emphasised that this did not involve the need for evidence which was sufficient to prove a charge (cf. Johnston v. H.M. Advocate 1993 S.C.C.R. 693). What mattered was whether the belief which the police officer entertained was a reasonable one for him to have entertained at the time. It did not matter whether subsequent events showed that the belief was wrong. Allowance had to be made for the experience of the police officer in the investigation of offences in the public interest. The Advocate depute submitted that when the circumstances were considered as a whole there were reasonable grounds for Sergeant Wiggley's belief that the appellant had committed an offence.

[8] We consider that the submissions made by the Advocate depute were well-founded. Sergeant Wiggley had responded to a call about a disturbance in Lothian Crescent. It is plain that he was acting on information indicating that a breach of the peace had occurred. He saw the appellant walking out into Lothian Crescent, with a bleeding arm wrapped in a towel. He was coming out of the area where the incident had been reported to have taken place. Apart from the concierge he was the only person there. The appellant saw him but appeared to be avoiding him. He got the impression that he did not want anything to do with him. When he caught up with the appellant, the latter immediately became aggressive. This was before he took hold of the appellant's uninjured arm. The appellant was obviously under the influence of drink. These circumstances appear to us to be significantly different from those in Cardle v. Murray, where there was merely a risk that the break dancer might knock into bystanders. In the present case the appearance and behaviour of the appellant suggested that he had been involved in some form of incident and that he was seeking to evade police attention. The sheriff was, in our view, entitled to take the view that there were reasonable grounds for the suspicion which Sergeant Wiggley entertained and on the basis of which he took hold of the appellant's arm. We should add that we do not consider that anything turns on the fact that Sergeant Wiggley did not carry out the procedure as set out in section 14(6) since the appellant immediately began to engage in verbal abuse.

[9] Mr. Shead went on to submit that in any event the conduct of the appellant at Lothian Crescent and at Ninewells Hospital did not measure up to breach of the peace in the light of the decision in Smith v. Donnelly 2001 S.C.C.R. 8000. However, as is plain from the application for the stated case and the case itself, this was not an issue at the trial, let alone one which was raised at the stage of the appeal. In the result it was, in our view, not appropriate for this matter to be raised for the first time in the course of submissions to this court.

[10] Having regard to the foregoing we will answer the questions in the stated case in the affirmative and refuse the appeal.



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