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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mason v Orr [1901] ScotCS CSIH_1 (28 November 1901)
Cite as: [1901] ScotCS CSIH_1, (1901) 4 F 220, (1901) 9 SLT 269

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28 November 1901


Lord M'Laren.—This is an action directed against the Superintendent of the Central Division of the Glasgow Police for an alleged assault, and the question is whether a relevant case has been stated.

The pursuer has his place of business in Argyle Street, Glasgow, and in connection with his premises there is a back entrance into a street adjoining the St Enoch Station of the Glasgow and South-Western Railway, which street is known by the name of North Drive. The doorway is below the level of the street, and is approached from the street by descending three steps.

The pursuer's case is that on 3d May last, on the occasion of the opening of the Glasgow Exhibition by the Duke and Duchess of Fife, he and a number of the work-women in his employment were standing on the pavement in front of his premises waiting to see the Duke and Duchess, who were to pass through this street on their return to St Enoch Station from the Exhibition; that the defender, who was there on duty, and the policemen under his command, proceeded to clear the pavement, and that when the pursuer interfered and insisted that his work-people were entitled to occupy the pavement, he was pushed down the steps and roughly handled by the defender.

Now, it is often necessary that the members of the police establishment in the discharge of their duty should use force, it may be to protect individuals who are being wronged, or to keep order in the streets. The police are entitled to use force when necessary in the discharge of their duties, and he would be a very inefficient police-officer who should confine himself to speaking to people, and leaving them alone if they refused to obey orders. To make a relevant case of assault on the part of a police-officer on duty it appears to me that it is necessary to aver either (1) that the order which the officer was seeking to enforce was unlawful, that is, not within the scope of his duty; or (2) that the pursuer was willing to comply with the order, in which case the use of force would be unnecessary; or (3) that the force used was manifestly in excess of the requirements of the case.

As to the first exception, the pursuer states that he was entitled to be on the pavement with his work-people, because the pavement is his property. Pavements usually are the property of the householder, but this right of property is subject to the public use of the pavement as a thoroughfare, and it was admitted at the bar that North Drive is a public street. On occasions when the arrival of persons of public position is expected to attract a crowd the magistrates are entitled to make use of the police force to keep the streets clear, and it is for them in the exercise of their discretion to give such orders through the police as they think fit for ensuring safety and good order. On this occasion the police were keeping North Drive clear against the arrival of the Duke and Duchess, who bad come to represent the King at the opening of the Exhibition, and, in my opinion, the pursuer had no higher right than any other member of the public to occupy the pavement on an occasion when the street was by lawful authority being kept clear.

The second exception does not arise, because the pursuer admits that he refused to leave the pavement, and claimed the right to occupy it by himself and by work-women.

As to the third exception, the averments of the pursuer do not come up to a case of force manifestly in excess of what was requisite. He does not say that a baton was used, or that he was even struck, still less that he was injured in his person. His statement is,—“The pursuer, along with his work-girls, was hustled by the defender, and pushed down the steps in the direction of the glass door of his factory, and crushed and assaulted.”

I do not know how a street can be cleared except by “hustling” and “pushing” the people who refuse to move. Where there is a crowd of persons present this must result in a certain amount of “crushing,” and as to the word “assaulted,” this seems to be only the pursuer's view of what the pushing and hustling amounted to, because there is no averment of any separate or individual assault. It would, of course, be impossible for an officer on duty to measure the degree of force which he uses so precisely as to know whether any individual in the crowd should be pushed down one, two, or three steps of the stair as the result of his effort, nor do I understand that the pursuer's case depends on any such minute criticism. His view is that the police had no right to interfere with him, and in this I think he is in error. In the result I am of opinion that the defender is entitled to be assoilzied from the action.

The Lord President, Lord Adam, and Lord Kinnear concurred.

4 F 220

The permission for BAILII to publish the text of this judgment
was granted by Scottish Council of Law Reporting and
the electronic version of the text was provided by Justis Publishing Ltd.
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