Scottish Court of Session Decisions

On the night of 5th November 1890 Jessie Young was apprehended by James M'Corriston and Malcolm M'Phee, two constables belonging to the Glasgow police force, and taken to the police office and there charged by them under sub-sec. 30 of sec. 149 of the Glasgow Police Act 1866 with importuning passengers for the purpose of prostitution. She subsequently brought an action of damages in the Sheriff Court of Lanarkshire against M'Corriston and M'Phee, and the Magistrates and Council of Glasgow as their employers.

She averred, inter alia—“(Cond. 2) The pursuer resides with her mother at 31 Willowbank Crescent, Glasgow. … (Cond. 3) The pursuer is a dressmaker, and is virtuous and industrious, and ever since her father's death, which occurred about four years ago, has been the chief support of the household. The pursuer is, and was at the date of her arrest after mentioned, engaged to be married. (Cond. 4) On Wednesday night, the 5th day of November last, the pursuer, after her work was done for the day, called at the house of a friend, Mrs Reid, residing in Garnethill, and Miss Reid, daughter of Mrs Reid, offered to accompany the pursuer home. On reaching the entrance to pursuer's house the defenders M'Corriston and M'Phee … sprang forward and arrested pursuer and Miss Reid. … Miss Reid and pursuer inquired what was wrong, but the defenders M'Corriston and M'Phee replied that they would know that when they got to the Cranstonhill Police Office, and declined to state any grounds for the arrest. The pursuer desired that she should acquaint her mother before accompanying the policemen, but this they refused. Although they knew that pursuer lived at the place where arrested, and would have been available at any time to answer to any alleged complaint that might be preferred against her, and although pursuer and Miss Reid offered to go quietly, they were roughly treated by the policemen M'Corriston and M'Phee, being dragged along by the arms, and jostled and hustled in presence of a large crowd of persons who had collected, and were taken to the Western Police Station at Cranstonhill. … (Cond. 5) On arriving at said police station the constables M'Corriston and M'Phee charged the pursuer and Miss Reid with importuning under section 149, sub-section 30, of the Glasgow Police Act 1866, which applies to prostitutes or night-walkers loitering in any road, street, court, or common stair, or importuning passengers for the purpose of prostitution. Both declared their innocence of the charge. The superintendent or other officer in charge at the police station refused to accept the charge against Miss Reid, and told her she might go; but he detained pursuer, on the ground, as he stated, that he had seen her there before. She explained that she once appeared as a witness in a case, but had never been charged with any offence. Ultimately she was liberated on a pledge of 15s., and was requested to appear at the Court the following morning. (Cond. 6) The pursuer, accompanied by a friend, attended the Court the following morning, but mistaking the hour of Court, and the calendar being a very light one, she arrived at the Court just as it had risen, being about a quarter of an hour late. Notwithstanding that Miss Reid's brother was present in Court, and craved a continuation till the following Saturday to allow of witnesses being brought forward, the sitting Magistrate declared the bail forfeited. (Cond. 7) The pursuer being anxious to have her character cleared of the foul charge laid against her, the matter was reported to the Chief Constable; and at a meeting with him it was arranged that the charge should be again brought up and evidence led for the prosecution and the defence, and the charge disposed of on the evidence, and Saturday, 29th November last, was fixed for that purpose. (Cond. 8) Pursuer along with her witnesses and agent attended at the hour named, but the sitting Magistrate on the advice of the assessor declined to hear the case. (Cond. 9) In apprehending the pursuer as aforesaid, the defenders, the said M'Corriston and M'Phee, acted maliciously, oppressively, and illegally, and without any just or probable cause. In executing the arrest they used great harshness and acted with quite unnecessary force and violence. … The charge preferred against her was utterly groundless, and was also made maliciously and oppressively by the said defenders.”

The defenders pleaded—“(1) The pursuer's averments are irrelevant and insufficient to support the conclusions of the summons. (2) Privilege. (3) The defenders M'Corriston and M'Phee not being employed or paid by, or under the control of the other defenders the Magistrates, &c., they are not liable for their acts, and they (the Magistrates, &c.) should therefore be assoilzied with expenses. (4) The defenders M'Corriston and M'Phee having acted on the occasion referred to on reasonable grounds, and in the execution of their duties, and in virtue of the powers conferred on them by the Glasgow Police Act 1866, they as well as the other defenders should be assoilzied with expenses.”

On 4th February 1891 the Sheriff-Substitute ( Erskine) allowed a proof before answer.

The pursuer appealed for jury trial, and proposed the following issues for trial of the

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cause:—“It being admitted that the defenders the Magistrates and Council of the city and royal burgh of Glasgow are Commissioners of Police of the said royal burgh, constituted by and acting under the Glasgow Police Acts 1866 to 1890, and that the other defenders the said James M'Corriston and Malcolm M'Phee are constables in the western division of the city of Glasgow, employed and acting under and in virtue of the said Acts—Whether on or about 5th November 1890 the said Magistrates and Council or the said James M'Corriston and Malcolm M'Phee, acting under their authority and for whom they are responsible, wrongfully, maliciously, and without probable cause apprehended: the pursuer, or caused her to be apprehended, at or near the house of her mother at 31 Willowbank Crescent in Glasgow, and conveyed her or caused her to be conveyed to the Cranstonhill Police Office in Glasgow, to the loss, injury, and damage of the pursuer? Whether, place and date foresaid, the said defenders in apprehending the pursuer as aforesaid acted oppressively and with unnecessary force and violence, and dragged her by the arms and jostled and hustled her, whereby she was injured in her person, to the loss, injury, and damage of the pursuer? Whether on or about the date foresaid, at the said Cranstonhill Police Office, the said Magistrates and Council, or the said James M'Corriston and Malcolm M'Phee, acting under their authority and for whom they are responsible, wrongfully, oppressively, maliciously, and without probable cause charged the pursuer, or caused her to be charged with the offence of importuning under section 149, sub-section 30, of the Glasgow Police Act 1866, to the loss, injury, and damage of the pursuer? Damages laid at £500.

Argued for the defenders—1. In the case of the Constables.—“ Where an action was brought against a public officer for alleged wrongful acts done by him when acting within the scope of his employment, the rule was not only that malice and want of probable cause should be inserted in the issues, but that to warrant the insertion of malice facts and circumstances from which malice might be inferred should be averred by the pursuer on record— Beaton v. Ivory, July 19, 1887, 14 R 1057; M'Murchy v. Campbell, May 21, 1887, 14 R. 725; Innes v. Adamson, October 25, 1889, 17 R. 11; Macaulay v. North Uist School Board, November 26, 1887, 15 R. 99. With these cases might be contrasted Lightbody v. Gordon, June 15, 1882. No doubt in the above cases where the rule referred to had been applied, the public officers had been superior in grade to police constables, but the principle of these cases applied to the present, as the protection given to the defenders in these cases was granted to them for the benefit of the public service in order to enable them to do the duty imposed upon them fearlessly— Urquharts v. Grigor, December 21, 1884, 3 Macph. 283. In the present case there were no averments on record to justify the inference of malice, and therefore the first and third issues should be disallowed. The second issue stood on a different footing. It involved a charge of assault or something like it, but should be disallowed in respect that there were no sufficiently specific averments made on record to support it. 2. There was no case against the Magistrates and Council. In the first place, there was no authority for the view that an employer could be made responsible for the malicious acts of his servant. It was also difficult to see how malice could be proved against a corporation, and as a matter of fact there were no averments of malice made against the Magistrates and Council. In the second place, the Glasgow police force was not under the control of the Magistrates and Council, but of the Chief-Constable, subject to the supervision of a statutory committee of the Magistrates—Glasgow Police Act 1866, sections 84 and 86.

Argued for the pursuer—1. In the case of the Constables.—The rule that facts and circumstances from which malice might be inferred must be averred on record was only applicable to, and had only been applied in, actions of damages against persons holding positions of importance in the public service, and was not applicable to a case like the present, where the defenders were merely police constables. Further, malice might be inferred from the averments made on record. 2. The Magistrates and Council were responsible for the acts of the constables as their servants. The appointment of the statutory committee did not exclude the responsibility of the Corporation—Glasgow Police Act 1866, sections 88 and 134; Goff v. Great Northern Railway Company, 1861, 30 L. J. Q.B. 148. Though there were no cases in which a master had been made responsible for the malicious acts of his servants, there were cases where employers had been made liable for the fraud of their servants, and the principle of these cases applied here— Mackay v. Commercial Bank of New Brunswick, 1874, 5 Privy Council Rep. 394; Houldsworth, 6 R. 764.

At advising—