ROBERT MOFFAT v. PROCURATOR FISCAL, EDINBURGH
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Kirkwood Lord Milligan Lord Cowie | 724/98 OPINION OF THE COURT delivered by THE HONOURABLE LORD KIRKWOOD in STATED CASE by ROBERT MOFFAT Appellant against PROCURATOR FISCAL, EDINBURGH Respondent _____________ |
Appellant, Scott, Burnett Christie
Respondent, Cathcart, A.D.
13 May 1999
The appellant in this appeal by stated case against conviction is Robert Moffat who was convicted at Edinburgh Sheriff Court of a contravention of section 41(1)(a) of the Police (Scotland) Act 1967 and breach of the peace. The charges narrated that on 7 August 1997 in the house at 48 Woodburn Drive, Dalkeith, the appellant (1) assaulted, resisted, obstructed, molested and hindered PC Jack and WPC Cotterell in the execution of their duty, and refused them entry to the house and struggled violently with them and (2) conducted himself in a disorderly manner, shouted, swore and committed a breach of the peace.
It appears that the appellant attended a party at 48 Woodburn Drive at about 11.30pm on 6 August. The occupier of the house, Mrs Barbara Mitchell, and the appellant's partner, Pearl Wilson, were also at the party. Shortly before 7.00am the next morning a call was made from 48 Woodburn Drive requesting an ambulance. At about 7.00am WPC Cotterell and PC Jack received a radio message to attend there in response to reports of a disturbance and they attended at about 7.10am just as the ambulance personnel were leaving the house, having been refused entry. The police officers spoke to the appellant at the door of the house but he shouted and swore at them, indicating that they should leave and that police assistance was not required. While they were speaking to the appellant both police officers heard shouting and screaming coming from within the house and identified the voice as being female. The appellant tried to close the front door but failed to do so as PC Jack was at that stage partly through the door. The police officers went into the house to investigate the disturbance and were again confronted by the appellant shouting and swearing at them. They could hear female voices shouting and a woman shout that somebody in the house was unwell and needed help. The appellant continued to shout and swear at the police officers and pushed PC Jack in the chest on several occasions, whereupon PC Jack caught hold of the appellant's left arm. He warned the appellant to calm down but the appellant continued to shout and swear and struggle with him. At that stage a third police officer, WPC Johnstone, arrived. She saw the appellant struggling with PC Jack who was trying to restrain him and calm him down. The appellant was swearing in an aggressive manner and Mrs Mitchell, the householder, was shouting "I want him out". WPC Johnstone told the appellant that he was under arrest and all three police officers restrained the appellant who was struggling, pushing and trying to break free. He was then conveyed still struggling, shouting and swearing to a police vehicle. The appellant gave evidence. He said that somebody in the house had called for an ambulance following a disturbance caused by the occupier's son being in a state of intoxication. When the ambulance personnel arrived he had refused them entry after explaining that their assistance was not required. He had refused the police entry as well and admitted shouting and swearing at them with a view to persuading them to leave. He said that PC Jack then grabbed hold of him and pushed him into a bedroom and he was arrested.
The sheriff recognised that there were certain discrepancies in the police evidence, but she did not consider these discrepancies to be material when set against the whole body of the evidence. She found the police evidence to be credible and reliable, but she did not accept the evidence of the appellant or his supporting witnesses. The sheriff did not accept a defence submission that the appellant had been unlawfully detained by PC Jack before the alleged offences occurred and she found the appellant guilty on both charges.
At the hearing of the appeal counsel for the appellant submitted that when PC Jack had taken hold of the appellant's arm he had acted unlawfully. He had simply been trying to calm the appellant down and not detain him. The police did not hold a reasonable suspicion that the appellant had committed an offence and, in particular, there was no specific finding in fact to the effect that they did hold such a suspicion. In the circumstances the appellant had been entitled to resist as he did. Reference was made to Twycross v Farrell 1973 S.L.T.(Notes) 85. In reply, the advocate depute submitted that PC Jack had not been acting unlawfully when he took hold of the appellant's arm. He had done so in response to being pushed in the chest several times. He had already witnessed a breach of the peace and an assault on him by the appellant and in the circumstances the police clearly had reasonable grounds for suspecting that the appellant had committed an offence and proceeding to arrest him. In the circumstances the conduct of the appellant had not been justified.
Having regard to what the police had seen and heard when they were at the door of the house, it was not disputed that they were entitled to enter the house in order to investigate a disturbance. While PC Jack admittedly took hold of the appellant's left arm, the sheriff's finding makes it clear that before he did so the appellant had been shouting and swearing at the police and had pushed PC Jack in the chest on several occasions. In these circumstances it is, in our opinion, clear that when PC Jack took hold of the appellant's arm, he already had grounds for suspecting that the appellant had committed an offence and we do not consider that his action in taking hold of the appellant could be regarded as unlawful. The third police officer also heard the appellant shouting and swearing and saw him struggling with PC Jack. In our opinion it is clear from the findings in fact that the police had grounds for suspecting that the appellant had committed an offence and we consider that the sheriff was entitled to convict the appellant on both charges. On the whole matter we shall answer questions 1(a) and (b) in the affirmative and refuse the appeal.
LIN