Robertson v Keith
| Jurisdiction | Scotland |
| Judgment Date | 05 November 1935 |
| Docket Number | No. 4. |
| Date | 05 November 1935 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION, with three consulted Judges
Lord Moncrieff.
PoliceChief-constablePowersMaintenance of disciplineScope of powers.
ReparationWrongous acts of public officialsChief-constablePolice search for absent constableWatch placed on private dwelling-houseAction of damages by owner of houseSlanderPrivilegeMaliceProbable cause.
In an action brought by a woman against a chief-constable, to recover damages for injury to her reputation and business resulting from the defender's alleged illegal actings, it appeared that the defender, after endeavouring without success to communicate with one of his inspectors who, having gone on holiday, had, in breach of police regulations, not left his proper address, had received information regarding the movements of the pursuer and the inspector which led him to suspect that the latter was sheltering in the pursuer's house. As the pursuer refused to answer any question regarding the inspector, the defender directed a watch for the inspector to be kept on the pursuer's house. This watch was maintained day and night for five days by police-constables stationed in private property and in a lane adjacent to the pursuer's house and grounds. The pursuer's property was not entered, and the movements of the pursuer and callers at her house were not, except on rare occasions, interfered with.
Held, by a Court of Seven Judges, that the protection given by law to police and other public officials while acting in the exercise of their duty extended to cases where, as here, a chief-constable was acting under powers vested in him for the maintenance of discipline within his police force; and, accordingly, that, as the defender's actings here were privileged, the pursuer was bound, but had failed, to prove that the defender had acted maliciously and without probable cause.
On 16th March 1933 Mrs Margaret Graham or Robertson, Hope Bank, Clincarthill Road, Rutherglen, brought an action against Andrew Nisbet Keith, Chief-constable of the Lanarkshire Constabulary, Hamilton, in which she claimed 1500 in name of damages.
The circumstances in which the action was brought, which are more fully stated by the judges in their opinions infra, were as follows:On 19th September 1932 the defender, as Chief-constable, had issued an order placing a detective-inspector named Anderson, who had for years been a friend of the pursuer, in charge of the detective force to be on duty at Hamilton Park Races on 26th and 27th September. On 22nd September, however, Anderson obtained a week's leave of absence, which covered the period including the races, and he left for his holiday without this being noticed. On 26th September the defender, being anxious to communicate with Anderson regarding his duties at the race meeting, discovered that he had not gone to the holiday address which he had given, in accordance with police regulations, and was not expected there. Later the defender received information that Anderson had been seen motoring in company with a woman who was not his wife. On Tuesday, 27th September, it was reported to him that the pursuer had been absent from her house in Rutherglen over the previous week-end, and next morning he learned that Anderson's motor car had been found in a lane beside the pursuer's house. The defender thereafter endeavoured, through two police superintendents, to ascertain from the pursuer the whereabouts of Anderson, but without success; and an open letter to Anderson, which he subsequently sent to the pursuer's house, was returned to him by the pursuer, who declined to give any information. Suspecting that Anderson was within the house, the defender then directed a watch for Anderson to be kept on the house, leaving it to the superintendent charged with this duty to make all necessary arrangements. A watch was, accordingly, put on the house on 28th September, and it was continued both day and night until 3rd October, when Anderson, who had reported for duty the previous evening, resigned from the police force. The watch was carried out by three shifts in the twenty-four hours, each shift consisting of six policemen who were stationed in pairs in private property and in a lane adjacent to the pursuer's house and grounds. The grounds were not entered, and the movements of the pursuer and callers at the house were not, except on rare occasions, interfered with.
The pursuer, who had carried on a chemist's business in Rutherglen, where she also held several public appointments, averred that the actings of the police had given rise to rumours adverse to her, and that the institution of the watch on her house had created the impression that she was a suspected criminal; with the result that her reputation was seriously injured and her business ruined.
She pleaded, inter alia:"(1) The pursuer, having suffered loss, injury and damage through the wrongful and illegal actings of the defender, as condescended on, is entitled to reparation therefor. (2) The defender having defamed the character of the pursuer to her loss and the injury of her feelings, the pursuer is entitled to reparation therefor."
The defender maintained that his actings, being for the purpose of maintaining discipline within the police force, were privileged.
He pleaded, inter alia:"(2) The pursuer's averments, so far as material, being unfounded in fact, the defender should be assoilzied. (3) The pursuer not having suffered loss, injury and damage through the wrongful and illegal actings of the defender, decree of absolvitor should be pronounced. (4) The defender, having acted without malice and with probable cause, should be assoilzied."
After sundry procedure, including a reclaiming note to the Second Division, the Lord Ordinary (Moncrieff), on 17th April 1934, repelled the first and second pleas in law for the pursuer, and assoilzied the defender from the conclusions of the summons.
At advising on 5th November 1935,
LORD PRESIDENT (Normand).The pursuer and reclaimer, a widow residing in Rutherglen, carried on business there as a chemist. She sues the Chief-constable of Lanarkshire for damages for injury both to her reputation and to her business. The ground of her complaint is that he ordered policemen of the Lanarkshire constabulary to keep a watch between 28th September and 3rd October 1932 in the neighbourhood of her house. This watch was set for the purpose of ascertaining the whereabouts of Detective-inspector Anderson. Detective-inspector Anderson had long been a member of the Lanarkshire police force, and he had proved himself to be a capable and efficient officer. He was on friendly terms with the pursuer, and his association with her gave rise to unfavourable comment and rumours in Rutherglen. In 1929 these rumours reached the ears of the defender, as also did complaints made to the Assistant Chief-constable by Anderson's wife. The defender regarded the association as detrimental to police discipline, and considered it advisable to transfer Anderson in June 1930 from Rutherglen to the Hamilton Division. Despite the change the rumours persisted. On 19th September 1932 the defender signed an order that Anderson should take charge of the detectives who were to be on duty at Hamilton race meeting on 26th and 27th September. On 22nd September, however, Anderson applied for leave of absence from 26th September to 2nd October, and the application was granted without its being noticed that it conflicted with the duties assigned to Anderson at the race meeting. When Anderson went on leave it was his duty to give the address at which he might be found during his absence, and this is regarded as an important matter of discipline. In his application he gave an address at Carnoustie where his mother resided. On 26th September the defender, who wished to speak to Anderson on the subject of the detectives' duties at the Hamilton races, found on communicating with the Carnoustie address that Anderson was not there. The defender was told by one of his inspectors that he had seen Anderson on the Sunday evening driving in his car at Fenwick Moor with a lady who was not his wife. The defender regarded these circumstances as serious, and he himself went by car to Carnoustie where he saw Anderson's mother. She was unable to say where Anderson could be found, and said that she did not expect him to come to Carnoustie. Early on Tuesday, 27th September, one of his subordinates reported to the defender that the pursuer had been absent from home for the week-end, and on the next morning he learned that Anderson's car had been found in the lane at the pursuer's house in the early hours of the morning. The defender went to the pursuer's house to see the car for himself, and he then decided that Anderson's conduct required further investigation. He sent Superintendent Garden and Superintendent Macdonald to the pursuer's house with instructions to question her about Anderson's whereabouts. They failed to obtain from her any information, although, as I shall show, the pursuer had, according to her own evidence, been with Anderson at Carnoustie on the previous day. The defender then directed that a letter should be sent to the pursuer for Anderson asking him to report at headquarters at once. The pursuer brought back the letter to the police-office and, according to the superintendent then present in the office, made no request to see the defender. The pursuer states that the superintendent said to her, "I will be frank with you. The Chief-constable suspects that the Detective-inspector is in your house"; to which she replied, "Of course that is the Chief-constable's business," and she adds, "I did not say whether Anderson was in my house or not." She then says that she asked to see the defender. In brief, the pursuer declined to give information. I think that the defender is not speaking very unreasonably when he says "the only thing that could be done was to make further inquiry and to...
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