A man who was convicted after head-butting a police officer lodged an appeal against his conviction. 

This incident occurred when the complainer, a police officer, attended the appellant’s home.  The police were in attendance following a phone call from a neighbour. Upon arriving at the appellant’s property, the police officer were initially only permitted to speak to the appellant through his letterbox. However, officers were eventually able to enter the property where they then able to caution and arrest the appellant. 

However, as they were walking down the stairs, the appellant tried to head-butt the police officer. At the trial only the evidence of the complainer and one other officer was submitted. The defence agent submitted that there was no case to answer because the evidence lead by the other officer was one who arrived after the arrest had been made. 

The crown relied on the fact that the officer were acting with lawful authority and had entered the appellant’s flat at his invitation, referring to McCallum v Richardson (2019).

Sheriff Principal Pyle stated that, “It is important to recognise the requirements of the Act, namely that the offence is an assault on a constable acting in that capacity. There is no dispute that the complainer was a constable and was acting in that capacity at the time of the attempted assault. It is only those facts which have to be established by corroborated evidence. They are the facta probanda.”

The Sheriff Principal concluded: “That is not to say that if the complainer had been acting unlawfully in arresting the appellant the offence is made out. But that is different from the question of what are the facta probanda of an offence under the 2012 Act.”

The appeal was refused.