Aberdeen man who tried headbutting police officer who arrested him loses appeal against conviction

About this case:

• Citation:
  [2023] SAC (Crim) 13
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Pyle

It was argued by Paul Matthews that the Crown had failed to corroborate evidence that the police constable was acting with lawful authority at the time of the offence. The court was asked whether the sheriff had erred in law in repelling the no case to answer submission.

The appeal was heard by Sheriffs Principal Derek Pyle and Gillian Wade, with Appeal Sheriff Andrew Cubie. Culross, advocate, appeared for the appellant and Glancy, solicitor advocate, for the respondent.

At his invitation

The appellant was charged with an assault of a police officer by attempting to headbutt him, contrary to section 90(1)(a) of the Police and Fire Reform (Scotland) Act 2012. Evidence was given by the complainer, a police constable who had attended the appellant’s home in uniform along with another constable. It was stated by the complainer that allegations against the appellant had been made by a neighbour, which caused him to believe he had reason to caution and arrest the appellant.

After speaking to the appellant through his letterbox, the complainer was allowed inside the flat, where he cautioned and arrested the appellant. As the complainer was taking the appellant downstairs, by which time he was handcuffed, the appellant tried to headbutt him. No evidence was led from the other constable who attended the flat with the complainer, but evidence was led from a further constable who arrived after the arrest had taken place and had seen the attempted headbutt.

After the Crown evidence was led, the appellant made a submission of no case to answer, which the sheriff repelled. It was submitted on appeal that, as the third constable had arrived after the arrest, there was no corroborated evidence that the constable was acting with lawful authority, which was an essential part of the charge which the Crown required to prove. In particular, it had to be proved that the complainer had entered into the appellant’s flat at his invitation, referring to McCallum v Richardson (2019).

The Advocate-depute submitted that, while the Crown required to prove that the constable had the capacity set out in the 2012 Act, but it was unnecessary for his evidence on that point to be corroborated. There was no evidence that the complainer was acting unlawfully at any stage.

Facta probanda

Delivering the opinion of the court, Sheriff Principal Pyle observed: “It is important to recognise the requirements of the Act, namely that the offence is an assault on a constable acting in that capacity. There is no dispute that the complainer was a constable and was acting in that capacity at the time of the attempted assault. It is only those facts which have to be established by corroborated evidence. They are the facta probanda.”

Referring to the case cited by the appellant, he added: “McCallum v Richardson is not in point. In that case the issue was the unlawful action of constables by entering into the home of the accused for the purposes of detention under the now repealed section 14 of the Criminal Procedure (Scotland) Act 1995. The appellant’s submission is a reflection of the now repealed section 41(1)(a) of the Police (Scotland) Act 1967.”

The Sheriff Principal concluded: “That is not to say that if the complainer had been acting unlawfully in arresting the appellant the offence is made out. But that is different from the question of what are the facta probanda of an offence under the 2012 Act.”

The appeal was therefore refused on the basis that the trial sheriff did not err in repelling the no case to answer submission.