Rebecca McCallum v. Procurator Fiscal, Edinburgh [2019] HCJAC 26

Appeal from the Sheriff Appeal Court in terms of section 194ZB of the Criminal Procedure (Scotland) Act 1995:- The appellant was convicted after trial at Edinburgh Sheriff Court of two charges of assaulting police officers at her home address. The appellant appealed to the Sheriff Appeal Court against her conviction. Her appeal was refused. Leave to appeal to the High Court was granted on the basis that the sheriff had erred in his findings in law by concluding that the appellant was entitled to use only reasonable force short of cruel excess, that the correct test to apply was that the appellant was entitled to use all necessary force short of cruel excess. It was contended that the Sheriff Appeal Court had also erred in applying the incorrect test. The circumstances were that police officers, in forcing entry to the appellant’s home and in taking hold of the appellant in an effort to remove her acted unlawfully. By doing this the police officers caused the appellant to struggle with them during which she repeatedly stated that she was refusing to go with them, that they were assaulting her, that they had no right to do what they were doing and that they should leave her alone. to avoid being removed from her house the appellant flailed her arms and legs and tried to physically prevent the officers from removing her. The struggle continued for a period of around 15 minutes during which the sheriff found established that the appellant deliberately kicked a male officer in the groin and in relation to a female officer “...continually and forcefully pinched the skin on the inside of the officer’s thigh; having grabbed the flesh on each occasion she twisted it with her hand.” The questions posed by the sheriff in his stated case were:- “(1) was I entitled to hold that the appellant’s actings went beyond what was reasonable resistance to an unlawful detention and amounted to cruel excess?; and (2) was I entitled to convict the appellant of assault at common law?” The appeal sheriff who granted leave noted that the case raised the issue of:- “how far an individual can go to resist an unlawful act by Police Officers.” The SAC considered whether the sheriff was entitled to hold that the appellant’s actings went beyond what was reasonable resistance to an unlawful detention and amounted to cruel excess. The SAC considered that the sheriff had directed himself correctly on the law in particular that the appellant was entitled to take reasonable steps to resist that unlawful detention and that the appellant went well beyond any kind of reasonable resistance to an unlawful detention. Leave to appeal to the High Court was granted on the grounds that the sheriff had erred in concluding that the appellant was entitled to use only reasonable force short of cruel excess it being contended that the correct test to apply was that the appellant was entitled to use all necessary force short of cruel excess. On behalf of the appellant it was submitted that the appellant was entitled to resist entry by the officers to her property and their efforts to remove her and she was entitled to take steps to remove them from her property which included “all necessary force” rather than only reasonable force being allowable and it was submitted the sheriff had applied the wrong test. It was accepted on behalf of the Crown that the two police officers unlawfully forced their way into the appellant’s property and that she was entitled to use force to eject them. It was also accepted that the officers acted unlawfully in laying their hands on the appellant and attempting to forcibly remove her from her home, all of which amounted to an assault on the appellant, which entitled her to use force to resist those efforts to remove her. The court here considered that the appellant, by the police acting in that unlawful way, was entitled to stop them from achieving their aim of removing her from her home. The court noted that there was agreement between the Crown and the appellant that there was required to be proportionality between the conduct the appellant could legitimately carry out and the right she sought to exercise. The court observed that the fact the police officers were able to achieve their aim of removing her from her home suggested that it would be difficult to characterise any conduct on the part of the appellant as disproportionate. The court considered a number of authorities in Scotland and England to identify the test to be applied in such cases. The court considered that where unlawful attempts are made to take a citizen into custody the citizen has the right to use such force as is necessary to prevent that from happening. As such, in considering how to frame the appropriate test, the court made reference to the concept of necessity and defined the test as:- “...whether the appellant’s conduct was reasonably necessary in order to provide effective resistance to the unlawful actings to which she was subjected.” The court noted that the sheriff failed to apply that test (or a similar one) to the circumstances of the present case in that he focused on the conduct of the appellant rather than the illegal conduct of the two police officers and any intention on the part of the appellant to injure or distress the officers ought not to have been determinative. Rather the illegal conduct which triggered the appellant’s conduct should have been given greater prominence, for example, the appellant’s own evidence and photographs of the bruising she suffered at the hands of the police. The court pointed to two aspects of the case which highlighted the sheriff’s error in focusing on the conduct of the appellant rather than that of the illegal conduct of the two police officers:- (1) the sheriff suggested that the appellant being wrongly detained would have required no force, from either the police or the appellant, had she been compliant, however, the court here considered that the sheriff had thus failed to recognise the appellant’s entitlement to react to the unlawful entry to her home and to defeat the unlawful attempts to remove her; and (2) the sheriff referred to a brutal attack with risk to life and limb of which there was no basis on the evidence to conclude that level of violence having been exhibited by the appellant, namely, pinching and nipping of the female officer and a minor kick to the male officer which resulted in no injury. The court concluded that the SAC was wrong in its decision and answered the two questions posed in the negative.