Sheriff Appeal Court dismisses challenge to arrest and detention made by police officer who arrested wrong man

Sheriff Appeal Court dismisses challenge to arrest and detention made by police officer who arrested wrong man

An appeal by a police officer who was arrested and charged with wilful neglect of duty after arresting someone without due cause and remanding him into custody for four days has been dismissed by the Sheriff Appeal Court after it found that the police had not acted unlawfully in detaining him.

Appellant Barry Scott raised an action against Kate Frame, who was the Police Investigations & Review Commissioner at the time, on the basis that he had been unlawfully and unnecessarily arrested. The Crown Office ultimately chose not to prosecute the appellant, nor any of the other officers involved in the detention, whose cases against the respondent were sisted pending the result of Mr Scott’s appeal.

The appeal was heard by Sheriffs Principal Aisha Anwar and Derek Pyle, with Appeal Sheriff Andrew Cubie. The Dean of Faculty, Roddy Dunlop KC, and E Campbell appeared for the appellant and Hood KC for the respondent.

Prepared to attend voluntarily

In April 2015, police officers, including the appellant, sought to execute an arrest warrant for a Mr Andrew Copestick. They instead arrested a Mr Gary Webb, despite his protestations that he was not Mr Copestick and the fact that he did not match his reported profile. Mr Webb was later released and settled a civil claim against the Chief Constable out of court.

The respondent’s investigators concluded that there were reasonable grounds to suspect that each of the five officers involved had committed an offence. The appellant was asked to attended Livingstone Police Office with a legal representative in May 2018 and told that upon his arrival he would be charged with police wilful neglect of duty and an attempt to pervert the course of justice.

The day prior to the appellant’s arrest, his solicitor sent a letter to the Senior Investigator leading the investigation advising that the appellant was prepared to attend on a voluntary basis for interview and as such the proposed arrest would be unnecessary and disproportionate. However, the SI did not respond to the letter, and the appellant was cautioned and arrested on 24 May 2018.

It was held by the sheriff that the onus of proof rested with the appellant to establish that his arrest was unlawful, and he had failed to do so. Neither the subjective attitude of the individual arrested nor an offer to attend voluntarily for interview rendered unlawful an arrest without warrant under section 1(1) of the Criminal Justice (Scotland) Act 2016.

The Dean submitted that the sheriff erred in his interpretation of the 2016 Act. He relied on the evidence of the SI to assess whether arrest and continued detention were necessary, and ought to have made enquiry into the decisions of the authorising officer. Section 50 of the 2016 Act placed a limitation on the power of a constable, and ought to be read in tandem with sections 1(1) and 64 to determine whether an arrest was lawful.

An event, not a process

Sheriff Principal Anwar, delivering the opinion of the court, said of the onus of proof: “Whether the sheriff was correct in his analysis of which party bore the onus of proof is immaterial. It was of no consequence to his decision on the lawfulness of the appellant’s arrest or detention in custody. The first ground of appeal is without merit.”

On whether it was necessary to arrest the appellant, she said: “We do not accept that the Act has created some form of artificial two stage test with each limb of the test being applied within moments of the other, namely the need to have formed a “reasonable suspicion” for suspecting that a person has committed or is committing an offence in order to arrest that person, and in the moments following the arrest, a requirement to take ‘every precaution to ensure that a person is not unreasonably or unnecessarily held in police custody’. An arrest is an event not a process.”

She continued: “For operational and investigatory reasons, [the SI] had concluded that arresting the accused was not simply desirable or convenient, but was necessary. He had also considered it disingenuous or unfair to conduct an interview of the appellant on a voluntary basis when it was clear that if the appellant chose to leave, he would be arrested. Conducting a voluntary interview in such circumstances would not be honest or effective.”

Turning to the necessity of his continued detention, Sheriff Principal Anwar added: “Referring to the non-exhaustive nature of the list set out in section 14(2), the sheriff noted that one factor alone might suffice in determining whether it is necessary and proportionate to keep a person in custody. In the present case, he held the nature and seriousness of the offence would suffice. We agree with that assessment.”

She concluded: “On the meaning of the word ‘necessary’, the sheriff noted that it did not mean “essential or that there was no alternative course open” to the constable in considering whether to authorise the keeping in custody of an arrested person. The sheriff was correct to so conclude.”

All of the appellant’s grounds of appeal therefore fell to be refused.

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