Victims treated like criminals should be criminal!

As Lord Young opined in 1893, ‘no one in this country, man or woman, is to be deprived of his or her liberty without a warrant from a magistrate’[1].  Those with an interest in the various Anti-Terrorism measures might smile cynically at this, but I think in general it holds true.

The issue that this case raises, is what happens when someone is arrested under a legitimate warrant but this warrant was wrongly issued?  What recourse might Ms Meighan have if she decides that she is not content with an apology?

Perhaps she could make a common law claim for wrongful detention. This is a special species of delict which entitles a pursuer to damages, without having to go through the normal process of establishing Duty of Care, Breach and Causation[2].

The problem is that where the detention is done under force of law, the cases indicate that one has to establish malicious intent underpins it[3].  And for those in the court service, this finds statutory basis in section 170 of The Criminal Procedure (Scotland) Act 1995. It is,  however, worth noting at this point that detention includes all interference with the pursuer’s right of physical movement and includes handcuffing an arrested person when it is not necessary to prevent her escape[4], which does seems to have been the case here.

In terms of the issuing of the warrant for her arrest, if malice can’t be established, could she make a common law claim for wrongful detention based on negligence? Well yes she could, but my understanding is that she is going to have to establish actual harm.

So, perhaps the best option is for her to make a claim under the Human Rights Act 1995, particularly in light of ECHR Article 5 paragraph 5 which provides that ‘everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation’.