McKIE v ORR
| Jurisdiction | Scotland |
| Judgment Date | 28 February 2003 |
| Date | 28 February 2003 |
| Docket Number | No 22 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Lord Emslie
Reparation - actings of police officers in making an arrest - Whether inference of malice could be drawn
A police officer was arrested and charged with perjury. She subsequently brought an action of damages against the Chief Constable in respect of the arrest. The Lord Ordinary dismissed the action on the basis that there were no relevant averments of malice on the part of the arresting officers. The police officer reclaimed and argued that the inference of malice could be drawn from three alleged wrongs ie (1) the actings of a detective sergeant in watching her urinate, undress, shower and dress at her home after her arrest; (2) the actings of a superintendant in ordering her to be physically held when at the charge bar and (3) the actings of two female police officers in conducting an intimate body search. The defender argued that the actings of the police officers were within their normal duties, and were not so violent or extreme as to allow malice to be inferred.
Held that in relation to all three of the alleged wrongs, the averments fell short of what would be necessary to be capable of justifying an inference of malice and lack of probable cause (p 322D); and appeal refused.
SHIRLEY JANE MCKIE brought an action for damages against Sir John Orr, the Chief Constable of Strathclyde police. The cause called before the Lord Ordinary (Emslie) on the procedure roll. At advising, on 14 February 2002, the Lord Ordinary dismissed the action. The pursuer reclaimed.
Cases referred to:
Beaton v Ivory (1887) 14R 1057
Henderson v Chief Constable, Fife Police 1988 SLT 361
Malcolm v Duncan (1897) 24R 747
Ward v Chief Constable, Strathclyde Police 1991 SLT 292
Woodward v Chief Constable, Fife Constabulary 1998 SLT 1342
Young v Magistrates of Glasgow (1891) 18R 825
The cause called before an Extra Division, comprising Lord Kirkwood, Lord Marnoch and Lord Caplan for a hearing on the summar roll.
At advising, on 28 February 2003, the opinion of the Court was delivered by Lord Kirkwood-
OPINION OF THE COURT - [1] This is a reclaiming motion at the instance of the pursuer against an interlocutor of the Lord Ordinary dated 14 February 2002 dismissing her action of damages against the defender.
[2] Until 18 December 1999 the pursuer was a serving police officer with Strathclyde Police and from about 1993 she was a Detective Constable based in Kilmarnock. The defender is the Chief Constable of Strathclyde Police. The pursuer is suing in respect of events which took place on 6 March 1998 when she was arrested and charged with perjury. The circumstances leading up to the incident on 6 March 1998 are set out in the pursuer's pleadings in condescendences 2 to 6 inclusive. Put shortly, on 8 January 1997 Marion Ross was found murdered in her house in Kilmarnock and the pursuer was appointed as one of the investigative team. In the course of the investigations into the murder the police found fingerprints on the frame of the bathroom door in the house of the deceased. It was alleged by the Scottish Criminal Records Office that one of the fingerprints on the door frame was that of the pursuer. The pursuer, in the course of the investigations, had been instructed not to enter the house. She denied that she had entered the house, and she stated that it was therefore impossible that she had left a fingerprint on the door frame. A man was accused of the murder and his trial took place in May 1997 in the High Court in Glasgow. The pursuer gave evidence at the trial and maintained that the fingerprint found on the door frame was not her fingerprint. In the event, the accused was convicted of the murder. The pursuer was subsequently indicted on a charge of perjury in relation to the evidence which she had given at the trial in relation to the fingerprint found on the door frame. She was arrested and charged on 6 March 1998, and it is the events which took place on that day which form the basis of her action.
[3] She avers that on 6 March she was on leave, and when her door-bell rang at about 9 am she answered it. Superintendent Malcolm was there with two female police officers, one of whom was Detective Sergeant Morris. Superintendent Malcolm advised the pursuer that he had a warrant for her arrest for perjury. It is common ground that the Crown Office had taken the decision to proceed with the petition warrant. The pursuer was in her night-clothes, having just got out of bed. She said that she wanted to get dressed, and tried to close the door but Superintendent Malcolm forcibly prevented her from doing so. He pushed the door open and went in, followed by the other two police officers. He told the pursuer that she was under arrest and to get dressed, and he instructed DS Morris to accompany her while she was doing so. The pursuer told DS Morris that she required to go to the toilet and DS Morris stated that she would follow her into the toilet, and she watched the pursuer as she urinated. The pursuer then stated that she needed to take a shower, and DS Morris watched the pursuer undress and take a shower, emerge from the shower, get dried...
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Gwen Loudon Again Stephen House, The Chief Constable Of Police Scotland
...could be inferred from the whole circumstances. It was observed that the pursuer’s averments made on record in the case of McKie v Orr 2003 SC 317 fell short of what would be necessary to be capable of justifying an inference of malice and lack of probable cause on the part of any of the po......