HMA v Rebecca McCallum 2018Ms McCallum had successfully appealed a conviction of assaulting two police officers at the High Court. The High Court ruled that the sheriff’s decision to convict the appellant was not correct in the eyes of the law.
The sheriff’s decision was also upheld by the Sheriff Appeal Court and therefore this was overturned. The High court concluded the wrong test was applied. The two police officers had unlawfully entered the appellant’s home in Edinburgh and a struggle then occurred when the appellant attempted to get them to leave and the Police officers attempted to remove the appellant from the property.
The appellant did not consent to them entering the property and no warrant was in place. The sheriff concluded in convicting the appellant that her actions were beyond reasonable force but this is not the correct test. The High court stated the correct test is if it was “reasonably necessary” in the context of the “unlawful” actions of the police. The appellants appealed to the sheriff appeal court where it was stated there was no fault in the sheriff’s reasoning and he had applied the law correctly.
Thereafter, leave to appeal in the High Court was granted and it was argued by the appellant that the incorrect test was used. It was argued that the alleged assaults took place after the officers entered the home illegally and this was part of the appellants struggle. In concluding the appeal the High court stated that the correct test is the ‘level of force used requires to be “reasonable for its purpose.’ Lord Turnbull said: ‘’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 acting to which she was subjected.”