Mother wins appeal against conviction for assaulting police officers who ‘unlawfully’ entered home

The High Court of Justiciary ruled that the sheriff’s decision to convict, which was upheld by the Sheriff Appeal Court, was “wrong in law” because he applied the wrong test.

The sheriff ruled that the appellant’s response went beyond reasonable force, but the correct test was whether her conduct in trying to resist detention was “reasonably necessary” in the context of the “unlawful” actions of the police.

‘Unlawful conduct’

The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Turnbull, heard that the appellant Rebecca McCallum, 38, was convicted of assaulting PC Jill Urquhart by repeatedly pinching and nipping her on the body to her injury, and found guilty of assaulting PC Scott Dugan by kicking him on the body.

The two officers had been instructed attended the appellant’s home in Edinburgh in the course of 22 November 2017 to detain her under section 14 of the Criminal Procedure (Scotland) Act 1995 in relation to an allegation of assault, with a view to transporting her to a police station for interview.

The officers attended at the appellant’s home at around 9:40pm and the appellant, who was at home with her 14-year-old son, opened the door of her flat in response to their knocking.

The officers explained their intentions during a brief discussion at the doorway, but the appellant, who was wearing her nightclothes, made it plain that she had no intention of accompanying them and attempted to close the door of her flat.

She was physically prevented from doing so by both officers who then crossed the threshold of her property, entered the hallway there and each took a hold of one of her arms with the intention of physically removing her.

A struggle ensued, during which the appellant reiterated vociferously 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.

In an effort to avoid being removed from her house the appellant flailed her arms and legs and tried to physically prevent the officers from removing her.

‘Beyond the pale’

The struggle continued for a period of around 15 minutes during which the officers were unable to control or subdue the appellant and they summoned assistance from other officers, who eventually subdued her sufficiently to permit the combined group of officers to physically remove her to a police station.

As was made plain in the case of Gillies v Ralph 2008 SCCR 887, in order to enter private property without invitation or enter private property forcibly and against the will of the occupier, police officers ordinarily require the authority of the courts in the form of a warrant, as the statutory power of detention contained within section 14 of the 1995 Act did not make provision for the power of entry onto private property.

It was therefore conceded by the Crown before the sheriff who presided at the appellant’s summary trial, before the Sheriff Appeal Court, who refused her appeal against conviction, and before the High Court that the legal position was clear and that the conduct of the police officers in forcing entry to her home and in taking hold of the appellant in an effort to remove her was “unlawful”.

However, the sheriff observed that while the appellant was entitled “to physically resist”, she was entitled to use “only reasonable force short of cruel excess”.

He concluded that the force which she used was “wholly beyond the pale, quite unnecessary and well beyond what was reasonable” and that her conduct therefore amounted to an assault at common law upon each officer.

‘Necessary force’

The appellant challenged the sheriff’s decision, but the Sheriff Appeal Court considered that the sheriff had directed himself correctly to the law, “namely that the appellant was entitled to take reasonable steps to resist that unlawful detention”, and said it could find no fault in his reasoning in his assessment of both the law and the facts which found proved.

Leave to appeal to the High Court was granted upon 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.

It was argued that the correct test to apply was that the appellant was entitled to use “all necessary force short of cruel excess” and that the Sheriff Appeal Court erred in supporting the sheriff’s application of the incorrect test.

It was submitted that in the circumstances which ensued the appellant was entitled to resist entry by the officers to her property, she was entitled to resist their efforts to remove her and she was entitled to take steps to remove them.

To frame the degree of force to which she was entitled to resort in terms of reasonableness was not helpful, given the purpose for which force could legitimately be deployed.

The “assaults” took place in the context of the struggle which happened immediately after the officers entered the appellant’s home – they were part of the resistance which the appellant was properly entitled to resort to in light of the officers having entered her home.

‘Correct test’

Allowing the appeal, the court observed that the level of force used requires to be “reasonable for its purpose”.

Delivering the opinion of the court, Lord Turnbull said: “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.

“The citizen who is unlawfully attacked has the right to use such force as is necessary to bring the attack upon him to an end. The citizen who is subject to an unlawful attempt to take him into custody has the right to use such force as is necessary to prevent that from happening.

“That must be the true content of the ‘right to physically resist’, as it was termed by the sheriff in the present case. In each situation the level of violence which the respective hypothetical citizen will be entitled to respond with will be linked to, and may be adjusted according to, what is being done to him and what remains necessary in order to bring the unlawful conducted directed towards him to an end.

“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.

“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.”

He added: “In assessing the evidence in the present case the sheriff did not seek to apply the test which we have identified. Nor, can it be said, that he applied a test that was broadly similar.

“The account which he gives of the case focuses heavily, almost exclusively, on the conduct of the appellant. There is no description of what the police officers did by way of subduing her, overcoming her resistance or removing her from the property.

“For these reasons we are satisfied that the decision of the Sheriff Appeal Court was wrong in law.”