Woman cleared of assaulting police who unlawfully detained her
A woman who assaulted police officers who acted beyond their powers in entering her home in order to detain her, has had her convictions for assaulting them, one to her injury, quashed on appeal.
Lord Justice General Carloway, Lord Brodie and Lord Turnbull in the Criminal Appeal Court ruled that Rebecca McCallum was entitled to use force that was "reasonably necessary in order to provide effective resistance to the unlawful actings to which she was subjected", and had not gone beyond this on the evidence.
The incident occurred when two officers were instructed to go to the appellant's home and detain her in relation to an allegation of assault. The appellant refused to accompany them and attempted to close her door. They prevented her from doing so and entered her flat with the intention of physically removing her. They did not appreciate that they had no power to do so without a warrant, and that their actions were unlawful.
A struggle ensued in which the appellant shouted that the officers had no right to do what they were doing, flailed her arms and legs to prevent them removing her, and in terms of the charges, repeatedly pinched and nipped one officer on the body to her injury (grabbing her inner thigh and twisting the flesh, causing extensive bruising) and kicked the other in the groin. She was only subdued and removed after 15 minutes when other officers arrived.
The sheriff, upheld by the Sheriff Appeal Court, ruled that the appellant was entitled to use "only reasonable force short of cruel excess", and concluded that the force which she used was well in excess of what was justified and that her conduct therefore amounted to an assault at common law on each officer.
Lord Turnbull, delivering the opinion of the High Court, said that putting the matter into a proper context, the appellant was "attempting to thwart the illegal efforts of two intruders who were determined, by whatever steps were necessary, to physically remove her from her home in her nightclothes at almost 10pm and take her elsewhere, leaving her 14 year old son alone in the house. That they were uniformed public servants did not alter the facts of the situation. It was the appellant’s right to stop them from achieving their aim".
While there required to be "a level of proportionality between the conduct which the appellant could legitimately engage in and the right which she was seeking to exercise", her "abject failure" to eject the officers and to defeat their purpose "might of itself tend to raise the question of how her conduct could be characterised as disproportionate".
He observed: "Just as when judging a claim of self-defence, the actions of a citizen who responds to unlawful conduct by a police officer ought not to be judged in too fine a scale and allowance must be made for fear and the heat of the situation."
In framing the appropriate test, Lord Turnbull concluded: "It therefore seems to us that in order properly to frame the test to be applied to someone in the position of the present appellant it is helpful to include the concept of necessity. This gives content to the question of how to measure the reasonableness of the individual’s response. It informs the test of proportionality. We note that in a different but related context the European Court of Human Rights has stated that the lawful use of force must not exceed 'what is reasonably considered necessary in the circumstances'... Accordingly, in our opinion, the correct test to apply is to ask whether the appellant’s conduct was reasonably necessary in order to provide effective resistance to the unlawful actings to which she was subjected."
In the present case the sheriff had focused disproportionately on the fact that violence was directed towards police officers, and as a consequence failed to direct himself to the appropriate question. He had "overstated and failed properly to assess the level of violence engaged in by the appellant", and his decision and that of the Sheriff Appeal Court was wrong in law.