GEORGE WALSH v. PROCURATOR FISCAL, EDINBURGH
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Cameron of Lochbroom Lord Marnoch Lord McCluskey | Appeal No: 1996/01 OPINION OF THE COURT delivered by LORD McCLUSKEY in STATED CASE by GEORGE WALSH Appellant; against NORMAN McFADYEN, Regional Procurator Fiscal, Edinburgh Respondent: _______ |
Appellant: Shead; George More & Co.
Respondent: Doherty, Q.C., A.D.; Crown Agent
14 September 2001
[1]In this case, the complaint against the appellant libelled (1) a charge of assaulting his wife and (2) a contravention of section 41(1)(a) of the Police (Scotland) Act 1967. That section provides that:
"Any person who -
(a)assaults, resists, obstructs, molests or hinders a constable in the execution
of his duty or a person assisting a constable in the execution of his duty...shall be guilty of an offence..."
Both the assault and the statutory offence were libelled as having occurred on 6 June 2000 within the house occupied by the appellant and his wife in Dalkeith. The appellant was convicted on both charges. This appeal, by way of Stated Case, is taken against the conviction on the statutory charge.
[2]That charge was in the following terms:
"on 6 June 2000 in 45 James Lean Avenue, Dalkeith, Midlothian you GEORGE WALSH did hinder Ian Campbell and Elizabeth Taylor, both Constables, Lothian and Borders Police, then in the execution of their duty and did refuse to co-operate with their requests to dress, rise or walk, whereby you had to be physically removed from the premises: CONTRARY to the Police (Scotland) Act 1967, Section 41(1)(a)."
It will be observed that the charge in the complaint uses the verb "hinder" but does not use any of the other words, "assaults, resists, obstructs, molests".
[3]From the findings in fact it is clear that on the date in question the police were summoned to the house following the assault by the appellant upon his wife; at that time there was a family friend, William Kelly, in the house. The findings in fact specifically relating to the statutory charge were narrated in the following terms:
"5.The police were called to 45 James Lean Avenue. They arrived about 3.20pm. They spoke to the complainer and William Kelly. The appellant sat on a couch and ignored them.
6.The police then informed the appellant that he was being detained for assaulting the complainer. They told him to put his shoes on. He said 'What for? I've done nothing.' He refused to rise. He said they could not take him away. He was not prepared to move. He was asked two or three times and each time he refused. He was asked to stand and refused to do so. The police officers had to get him to his feet. They lifted him up. He would not walk out of the house with them. They had to drag and half-carry him to the top of the stairs. He did not support himself. Mr Kelly encouraged him to go. Eventually the officers persuaded him to walk."
The findings of primary fact were not in issue. The sheriff also found as a fact that throughout these events the police officers were acting in the execution of their duty. There was no challenge to the finding that the police officers were acting in the execution of their duty; that duty arose under section 14 of the Criminal Procedure (Scotland) Act 1995.
[4]The sheriff narrates in the Stated Case that, in relation to the statutory charge "the defence submission was that section 41(1)(a) dealt with physical actions against the police, such as obstructing them by struggling. There was no duty to dress, or rise, or walk. Failing to do what is required of a person is not a breach of the section. There was no duty to go with the police or to make one's legs work...There required to be a physical aspect of the conduct. Hindering and obstructing are synonymous. The police had asked the appellant to put his shoes on and accompany them. He had simply refused. This was not a breach of the section." The learned sheriff rejected the submission on behalf of the appellant both in repelling a motion to uphold a "no case to answer" submission and also in determining that the appellant was guilty of the charge. The sheriff gives a full account of his reasoning, under reference to certain reported cases, and that account may be referred to for its terms.
[5]In the application for the Stated Case it was asserted that the appellant had simply refused to put his shoes on and had declined to comply with the police constables' request that he stand up and walk out of the house. The application continues
"The appellant did not struggle in any way. It is submitted that the fact as narrated herein do not constitute sufficient evidence to amount to a contravention of the Police (Scotland) Act 1967 section 41(1)(a). In particular there was no evidence of the appellant acting against the police officers in a physical sense".
[6]In presenting the appeal, Mr Shead, for the appellant, properly accepted that the constables were exercising their powers as contained in section 14 of the 1995 Act, which gives the constables a power to detain a person where there are reasonable grounds for suspecting that he has committed an offence punishable by imprisonment; he accepted that there were such grounds in the present circumstances. The section also empowers the constables to take the detained person "as quickly as is reasonably practicable to a police station or other premises...". It was not in dispute that, once they had decided to detain the appellant, the constables, in attempting to take the appellant to the police station, were acting in the execution of their duty, within the meaning of that term as used in section 41(1) of the Police (Scotland) Act 1967. Mr Shead submitted, however, that the facts as determined by the sheriff established no more than that the appellant had declined to comply with the requests made to him by the police, and that he had simply remained physically passive. As Mr Shead put it, "Passivity is not enough to constitute a breach of the section." However, he accepted that in certain circumstances it might well be a matter of degree whether or not a complete failure to co-operate with the police in any way might amount to an obstruction or hindering of the police in the execution of their duty. In his submission the present was not such a case. He referred the court to MacNeil v Thompson (Sh. Ct.) (1979) S.C.C.R. supp. 235. That was a case in which the accused repeatedly attempted to rekindle a fire outside the turnstile doors of a football stadium. A police officer, in the execution of his duty, was attempting to extinguish the fire. In deciding, against that background, that the accused's actions in trying to get the fire to flare up again did not constitute a breach of the section, Sheriff Scott concluded that, although the accused there had performed physical acts by trying to rekindle the fires, he had not done anything physical to the constable, and that it followed that there was no physical hindering of what the officer was seeking to do in the execution of his duty. In that case, Sheriff Scott wrote fairly fully upon the matter and referred to various authorities and dictionary definitions which appeared to have a bearing upon the issue. He drew a distinction between what he described as "the figurative meaning" of the words "obstruct" or "hinder" and the physical elements inherent in "hindering" in its ordinary sense. Mr. Shead sought to rely on this distinction.
[7]In reply, the learned Advocate Depute referred the court to Skeen v Shaw and Another 1979 S.L.T. (Notes) 58. That was a case in which two persons were charged under section 41(1)(a) following an incident in which they stood in front of and threatened police officers at a time when the officers had a prisoner in their lawful custody. The report narrates that in the course of the altercation, "the officers had difficulty in conducting their prisoner towards a police van because the accused were standing in their way. At no time did the accused come into physical contact with the police, nor did they physically threaten them." The stipendiary magistrate found the charge "not proven", on the basis that the words "resists" and "hinders" appearing in section 41(1) of the 1967 Act "are ejusdem generis with assault and require an element of physical obstruction". In that context, the High Court, held that the magistrate was not entitled to find the charge "not proven", and remitted the case to the magistrate with a direction to convict. The Opinion of the High Court contained the following passage:
"Now we do not propose to consider, and do not require to consider, whether the word 'hinders' in the context in which it appears also requires a physical aspect or requires a physical element, but that word, by its very introduction, demonstrates how small a degree any physical element must be in the act of persons who place a difficulty in the way of the police in the execution of a purpose in the course of their duty. That is what the word 'hinders' means and even if the act of hindering must contain a physical element the degree of physical element the degree of physical element present in this case required the magistrate to convict." (emphasis added)
[8]In our opinion this appeal must fail. The duty that the constables were performing was a duty arising under section 14 of the 1995 Act. Section 14(1) provides:
"14.-(1) Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations-
(a)into the offence; and
(b)as to whether criminal proceedings should be instigated against the
person,
detain that person and take him as quickly as is reasonably practicable to a police station or other premises and may thereafter for that purpose take him to any other place and, subject to the following provisions of this section, the detention may continue at the police station or, as the case may be, the other premises or place."
Section 14(8) provides:
"A constable may use reasonable force in exercising any power conferred by subsection (1), or by paragraph (b) of subsection (7), above."
A person who deliberately performs some action with his body so as to place some difficulty in the way of the police constables who are trying to take a section 14(1) detainee to a police station, and especially if he does so in a way calculated to cause the constables to resort to the use of force to effect their purpose, is clearly hindering them in the execution of their duty. If it be the case that the word "hinders" requires a physical aspect or physical element then, in our opinion, that physical element was provided in the present case by the deliberate decision of the appellant to sit on the couch and to remain inert, thus rendering it necessary for the police constables to use force, as permitted by section 14(8) of the 1995 Act. As the Sheriff found, he asserted to the police that they "could not take him away". Yet it was their duty to take him away. He deliberately placed a serious difficulty in their way by choosing to turn himself into a limp dead-weight. Even after the police officers got him to his feet, by lifting him up from the couch, they had to drag and half carry him to the top of the stairs. He deliberately chose not to support himself until at least he had reached the top of the stairs. As the constables, having detained him, had a duty to take him as quickly as was reasonably practicable to a police station, his deliberate choice to render his body inert and not to support himself so that he had to be dragged, gave his conduct whatever physical aspect might be necessary to result in his hindering the police in the execution of their duty under section 14(1). He deliberately made his body inert and immobile so as to render it difficult for the police to carry out their duty under section 14(1). He hindered them in the performance of their duty by compelling them to lift, carry and drag an adult man. We have no difficulty in concluding that this amounted to hindering the constables, given the applicability of the principle applied by the High Court in Skeen v Shaw and Another.
[9]In these circumstances we shall answer the relevant questions, questions 2 and 3, in the affirmative.