The Big Man; Should We Teach The Law In School?

We have all seen and heard of the big man, of course the video is available to all on Youtube here: The Big Man.

Is this a moral victory or should we look at the story is closer detail ?. Let’s have a close examination of some of the ‘crimes’ committed and possible outcomes for those that think the matter was a simple outlook of  self Justice.

So what actually happened then?

Let’s take this from the perspective of the three persons directly involved:

The ‘boy without a ticket”:

Well, from what we can see in the video and we must remember that this is an abstract video that does not show the whole situation. We can presume that this discussion was not immediate- after all, why would someone take the liberty to film such a situation in the first place if they did not have some form of suspicion that it was going to be anything other than a run of the mill ticket examination?

The guy is named as Sam Main, a nineteen year old student from Falkirk. Little else is known about the student from Heriot Watt University  other than that available in the press; and his claims there that,” ‘In the morning I got a ticket from Polmont to Edinburgh Park before 10am, so I wasn’t able to use my railcard to get a return. The guy sold me two singles but they were both for Polmont to Edinburgh. ‘I didn’t realise until later but I thought I’d be able to explain what happened to the conductor on the train.’I was on my way home from my second exam when it happened. I’m diabetic and hadn’t eaten all day so I was just desperate to get home. I wasn’t given a chance to explain the ticket situation. The conductor just immediately said: “That’s the wrong ticket. Off!”‘I didn’t even see the other guy coming. He lifted me up from behind and all I could see was chairs and the floor. He chucked me off and I landed right on my face. I tried to get back on to get my bag but I was shoved off again. I did get my bag back after that though.’I ended up getting a taxi back to Falkirk. It cost me £20. I did have money to buy another ticket but I wasn’t given the option.’

He added: ‘I’ve probably spent thousands of pounds on rail travel. I normally use a season ticket but when the exams are on I just buy a ticket on the day.

‘I did pay for my fare; I just didn’t get a chance to tell the conductor what happened.’

He told a local paper that he had been out celebrating after an exam and was ‘half asleep.’

‘I did have a ticket but I must have handed over the wrong one to the conductor,’ he added. ‘The next thing I know this big guy is manhandling me to the door and throwing me off.’

A fairly plausible story however exactly where he goes from being, ‘sold two singles’ to, ‘having a ticket’ is a bit of a contradiction, but what can we tell from the video?
Well, in simple terms not a lot and this is perhaps the problem. The person that recorded the footage claims that an argument had ensued for “ten minutes” before he started filming however there is absolutely no evidence to back this theory up and as of yet, no further witnesses to this degree that have spoken publically.

From the footage available Sam Main hardly covers himself in glory, he doesn’t appear to take too many steps to explain his situation or stress the mistake to the conductor. His language is hardly of the most descriptive variety but let’s not kid ourselves either: swearing is an everyday occurrence for many. It doesn’t make it right but nor is the language used in a threatening manner that would cause instant alarm or unrest. There is no aggression in the voice and nothing to suggest that Sam Main posed any imminent threat other than being an annoyance on a train and with the wrong ticket.

How does the rail network deem rail travel and a contract? Well it seems fairly evident that you must have a valid ticket to travel, but common sense tells you that anyway:

 2. Requirement to hold a ticket: Before you travel you must have a ticket or other authority to travel which is valid for the train(s) you intend to use and for the journey you intend to make. If you travel in a train:

  1. without a ticket; or
  2. the circumstances described in Conditions 10, 11, 12, 18, 19, 22, 30, 35 and 39 apply;

you will be liable to pay the full single fare or full return fare or, if appropriate, a Penalty Fare (see Condition 4) for your journey.

Sam Main claims to have known that his ticket was not the correct one, so should he have perhaps looked at a different style of recourse than hoping to explain a mistake to a ticket examiner? I shall let you decidefrom the wonderful refund rules below:

E. Your refund rights

26. Refunds on tickets which have not been used

If you decide not to use a ticket (other than a Season Ticket – see Condition 36) to make all or part of your intended journey, then:

  1. if the train you intended to use is cancelled, delayed or your reservation will not be honoured, you decide not to travel and at that time you return the unused ticket to any ticket office, the Train Company responsible for that ticket office will, if it is in a position to do so, give you an immediate full refund as shown in Condition 27;
  2. if paragraph (a) does not apply and the ticket has been bought from a Train Company’s ticket office (or a self-service machine) and you return your ticket at any Train Company’s ticket office no later than 28 days after the expiry of the ticket’s validity, you will receive a refund (subject to the notes below); or
  3. if paragraph (a) does not apply, the ticket has been bought from a Train Company’s telesales office or a Train Company’s internet website and you return the ticket to an address notified by that Train Company no later than 28 days after the expiry of the ticket’s validity, you will receive a refund (subject to the notes below); or
  4. if paragraph (a) does not apply and the ticket has been bought from a travel agent, if you return the ticket to that agent no later than 28 days after the expiry of the ticket’s validity, you will receive a refund

Swearing, although not a criminal offence in itself would appear to breech the train companies terms and conditions and therefore the conductor would have been well within his rights to remove Sam from the train for the way he spoke through this rather broad spectrum rule:

Section IV miscellaneous conditions

58. Unacceptable conduct

Any person who a Train Company believes is likely to act in a riotous, disorderly or offensive manner may be refused access to, or may be required to leave, trains, platforms or stations.

A rule that would be rather interesting to see enforced around 1.30pm on a Saturday match day………………..

There appears to be no real defence for Sam and his inability to A) convey his situation in a respectable and clear manner and B) his presence on a train without a valid ticket. At no point during the video anyway did you hear Sam Main utter any words that would indicate his willingness to purchase another ticket or that he already had one in his possession. Quite simply put, the evidence is not enough to excuse his behaviour, however legally – he didn’t do anything that would see him fall foul to the law either. Remember, innocent until proven guilty. As much as Sam did not offer to purchase another ticket at no point during the video did you see him offered the opportunity to purchase one either. A contract lawyer’s field day I am sure as I know they all have problems as is with Scotrail and their lack of access to public terms and conditions.

The Conductor:

Okay let me set out a stall here for train conductors. Two of my friends do this job for a living and I know only too well how difficult a job that it can be. Everyday these people are armed to the hip with a computer and a pocketful of cash and charged with collecting money and checking the tickets of customers that are not always perfect upstanding citizens.

On any night of the week many train conductors are abused, spat on and threatened by passengers- mainly young youths. There is nowhere for them to hide, they have no real protection from a threatening passenger and no idea the nature of the person that they are dealing with. I totally understand and sympathise with their situation, it is a rather thankless job where every move you make could see you in a perilous situation due to the nature of today’s society.

In the clip the conductor does not do himself any favours. Scotrail have commented on the subject to say:

‘While we welcome the public’s support of our zero-tolerance stance on anti-social behaviour, our staffs are trained in conflict management and we do not expect members of the public to take matters into their own hands.’We are investigating the incident, which appears to show a person travelling without a valid ticket, refusing to pay for the journey, and swearing at a staff member in full view of customers.’Trained in conflict management? Not really…from the evidence that I see. The clip is short, and as I must again stress the lead up to this video could answer a lot of questions – but from what we CAN see the conductor does nothing to calm the situation. In fact, on no less than three occasions he stresses to Sam Main that he is ‘getting paid ….can wait all night’ followed by a statement to suggest that other passengers will get angry/restless. If anything, this is actually a threat. Again, at no time does he offer an ultimatum of ‘buy a ticket or you are off’ rather just a plain and simple ‘OFF!’. This order is all very good and well but (and I know I speak with hindsight and with the benefit of not being present at the time) would he not have been better to suggest that failure to produce or purchase a valid ticket will result in further action being taken involving the police or other relevant authorities?

 I would think so. The conductor at this stage covers himself in no glory taking a rather personal rather than professional stance on the matter with Sam Main. I am not suggesting that the conductor should face any punishment on the matter, indeed if anything I would say his lesson has been learned. His acceptance of an offer by ‘the big man’ followed by the obvious realisation of what he had agreed to when matters got out of hand show that ,at least within himself, he knew the situation had gotten beyond his control.

Do I blame the poor guy? Personally no, as I have said the job is thankless and every decision perilous no matter how innocent the job may appear on the face of it. However if we are to pick the bones of the video at least then it could easily be suggested that his ‘conflict management’ was not particularly up to scratch.
The Big Man:

Well, this is where the debate really happens. Allan Pollock of Wishaw has been praised by many for his zero tolerance approach and lauded by others for his complete over reaction to a situation.

 In the video, Mr Pollock is clearly seen to grab an unsuspecting Sam Main, and violently remove him from the train and then further push him onto the platform using brute force.His father has publically spoken on the matter defending his son and praising him for holding good old family values.Alan’s father spoke out about the incident and defended his son.

Jim, who is in his 60s, said: ‘I have spoken to Alan and told him he did the right thing.’It’s totally unacceptable. As a family man I could never have allowed my kids to do that.’I’m sure his father [Main’s] would not be very proud of him.’I brought them up to know right from wrong and that’s all my son was doing.’

‘Do you turn your face the other way when something has happened, if somebody got stabbed in the street?

‘It’s very out of character for Alan. He must have been pushed to the limit. I was a wee bit disappointed no one actually got up and helped him.’Mr Pollock said his son would not have thrown him off the train if he had not been given permission by the inspector.’He asked the chap. The inspector wasn’t capable of putting the boy off. The inspector gave him permission to do it. If the inspector said no Alan would have sat down.’Asked how his son was dealing with the media storm surrounding the video, he said: ‘He’s obviously concerned about the press coverage.

‘But this happens just about every other day. The train prices are so high because of the number of train dodgers. That’s why the fares are so expensive.

‘I’ve spoken to Alan and I was telling him he did the right thing. He’s not impulsive, but the situation was getting out of hand and the inspector wasn’t able to do anything.

‘He’s got his family’s support.’I’ll be wondering what the Heriot Watt principal will say if that’s somebody representing his university.’The chap that actually had the camera said it was about five or ten minutes of cursing and swearing before he put the camera on.’He added: ‘I don’t want to ruin his career, but yobbish behaviour can’t be accepted.’

Mr Pollock said the student’s behaviour was putting women and children in a ‘state of fear’.

The incident begins when a conductor is told the teenager does not have a ticket and tells the driver of the train to stop until the youngster gets off.

When the youth refuses a shouting match ensues until Alan, later referred to as ‘the big man’, leaps to his feet and frogmarches him off the train – and keeps pushing him off when he repeatedly tries to re-board the service.

So, it would appear that Mr Pollock senior is suggesting there was more to Mr Main’s actions than would appear in the video clip – he suggest that his behaviour was indeed causing fear and alarm on the train. So was Sam Main guilty of breach of the peace?

 Breach of the Peace in Scotland is a crime that is regarded as a ‘catch all’ crime. The phrase ‘catch all’ is one that often crops up in Scots law and there are many ‘catch all’ parts involved, often named ‘general clause’ or the like that some people may have come across before if they have taken advice on consumer matters from the Office of Fair Trading or more likely consumer direct.

In Scotland it is within the courts that the crime of breach of the peace has been established. The crime is rather unique to Scotland in that it has no direct similar crime in England, probably the closest match would be that of Section 5 of the Public Order Act 1986.The case of Smith v Donnelly is perhaps the most defining on Breach of the peace and until this case the general acceptance of Breach of the peace was that of behaviour that caused embarrassment, upset or annoyance to another. A very broad spectrum.Smith v Donnelly set the bar to this: “conduct which [presents] as genuinely alarming and disturbing, in its context, to any reasonable person”So what is the difference, the words ‘genuinely alarming’ or ‘disturbing’ and ‘reasonable’? Reasonable is a word that crops up in Scots law very often, mainly due to the objective nature of Scots law – that is to say, in the view of the ordinary man.In Scotland you can split the law into two easily definable categories. These are ‘common law crimes’ or ‘mala in se’ crimes to give the Latin phrase that basically translates as ‘evil in itself’. In contrast to this there is a strict liability crime, statutory offences or ‘mala prohibita’ crimes that roughly translate in layman terms as crimes prohibited by law. So what is the difference? Well, mala in se crimes involve incidents from murder, Rape, Assault etc. whereas mala prohibita is anything from speeding to dropping litter. Things that are outlawed simply because Government Acts have made them so.They are not in themselves evil.

In any crime, there must be present two evident elements. One is named an ‘actus reus’ – this is the act itself. In murder, the killing if you like. The other is the ‘mens rea’ – this is the mental element behind it, the thought. It is generally regarded that in Law thought itself cannot be punished but for a crime to be complete there must be the commission of an actus Reus with a requisite mens rea. Without going into too much detail consider the words ‘intent’ and ‘recklessness’ as a mental element.

Again, without too much detail when talking about the ‘mala prohibita’ crimes we can basically presume mens rea with regard to the crime. The commission of the actus is basically enough evidence in itself. However in Mala in Se crimes the mens rea must be proved, beyond all reasonable doubt.

That is a very basic background without waffling on too much to the difference between the majority of crimes in Scots law.

In that case the actus Reusof breach of the peace as quoted above, according to Smith v Donnelly, is“Conduct which [presents] as genuinely alarming and disturbing, in its context, to any reasonable person”Actual evidence that the witnesses to or the complainers of the conduct were alarmed and disturbed by the conduct is not needed.  The court has set an objective test: the reasonable person (if a reasonable person would not have been alarmed to that degree, then the conduct is not sufficient for breach of the peace

The conduct must be of sufficient seriousness that it would lead to the inference that it would be likely to result in serious disturbance of the community.  It follows that conduct which presents as merely embarrassing or annoying or irritating or inappropriate (which is probably what is meant by ‘a breach of decorum’) will not be of sufficient gravity to satisfy breach of the peace: something ‘substantially greater than mere irritation is involved.So what about the mens rea?(I stole this part from another blog because basically it summed up what needs to be said without my waffling)As breach of the peace is a common law crime it follows that there must be a mens rea element to the crime.  However, the mens rea has not been adequately discussed in any reported case.  We can look to a case which pre-dates Smith v Donnelly for some guidance on the matter (although it should be noted that given the fresh look of breach of the peace following Smith v Donnelly it cannot be said whether this can be relied upon).  We can look to the case of Hughes v Crowe 1993 SCCR 320.  In this case the courts view was that:“in this case it can reasonably be said that the evidence described a course of conduct persisted in for a substantial period of time which indicated a gross lack of consideration for others who might be present in the other flats in the block at the time” (Hughes v Crowe 1993 SCCR 320 at 323F)

It would appear, that from this, there is a suggestion that there needs to be some form of negligence or even recklessness, in the sense of indifference to the consequences, was what was thought to be relevant in that case.  We can presume that the consequence here was the potential for the conduct to provoke severe disturbance of the peace.  However, it was recognised in Smith V Donnelly that there is a need to apply breach of the peace to a wide variety of circumstances.  This means that Hughes v Crowe cannot be relied upon as a general account of the required mens rea.

 So, as per Mr Pollock’s argument, did Sam Main put the lieges in a state of fear or alarm? I think that might be very difficult to prove especially from the video clip that we have as evidence although I am sure others on the train would be more than entitled to argue differently.
On the other hand, has Mr Pollock just suggested something that his son may be guilty of? Most certainly, Mr Pollock Jr – clearly from the clip- has acted in a way that would fit the description of Breach of the Peace that I have stated. His actions were perfectly descripted of someone acting in such a manner.Take a look at the woman with children in direct shot of the camera. Look scared?  However, I would fear that Breach of the Peace would be the very least of Mr Pollock Jnr’s problems with regard to possible charges.Mr Pollock, it would appear, has the wonderful charge of Assault hanging over his head.Assault:

The term assault is one that is thrown around a lot. The vast majority of people would view assault as a physical attack upon a person. A Punch, a Kick… stabbing even perhaps……They would not be wrong, but the term assault goes far deeper than this. Macdonald v HMA suggests that assault is an ‘attack’, to say the least. As a central concept attack would define an assault as when one person makes an attack upon another with the intention of affecting the immediate bodily injury of that other person or producing the fear of immediate bodily injury in his mind.
So what is the actus Reus of assault then, it seems like wide scope? Well…it is.

‘Attack’ may seem strange in view of the great variety of conduct that the common law has accepted as sufficient for assault. It is submitted that the sense of an unjustified, hostile, direct approach to the victim is apt to describe the vast majority of assault situations that actually happen in real life. It is true that spitting on someone has been described as an assault (Lord Justice Clerk Boyle). So to, has cutting off a sleeping woman’s hair (Lord Cowan – debatable).

What about the case in hand, well…what is an attack causing injury? As with the general concept of assault bodily harm is often the consequence. The injury does not need to be severe, grabbing a person by the throat in order to march them rapidly into a police interview room for example…. (Bonar v McLeod). It does not seem to matter if the injury is serious or actually rather trivial: as long as it is produced by a deliberate attack.

Another example of assault was stated in Atkinson v HM Advocate as ‘Gestures threatening violence so great as to put another in bodily fear, whether accompanied by words of menace or not, constitute assault’.

So simple shaking your fist with a few choice words can be classed as assault.Really, does Mr Pollock have any real defence then? Quite simply no he does not, what is filmed is a clear version of assault where he has decided to take the law into his own hands and commit a crime that is punishable by law whether he meant it with the best of intentions or not.
Well natured or not the move was certainly ill advised. The action or Mr Pollock on that train, and the violence used could have had more devastating consequences for Mr Main and for himself.

This is all hypothetical now but it is not something that is beyond the realms of possibility. What if Mr Pollock had pushed Mr Main onto the platform causing Mr Main to meet an unexpected end? In Scots law we rely on something called ‘causation’ to define whether or not someone’s death was caused by another’s actions.Did the accused’s actions directly have a ‘causal link’ to the final outcome?. It is actually quite simple to explain, in Latin it is named sine qua non and that translates rather simply to ‘but for’ and this is where causation can be simply explained. ‘But For’ the conduct of the accused would the victim have met their fate. In this case the answer would be no, if Mr Main had fallen badly….banged his head, suffered trauma and simply died Mr Pollock would be looking at a more serious charge. Murder? Probably not, after all the mens rea of such may be harder to prove; Intent = definitely not, Recklessness, “a total indifference to and disregard for the safety of the public” – in theory, perhaps. In reality though not because of many reasons that I cannot go into for fear of making this a dissertation.

It would however be culpable homicide. This is similar if you like to Manslaughter for those that watch too much CSI, but the crime of manslaughter does not actually exist in Scotland. It is culpable homicide. Due to the nature of the assault we see in the video it is best to differ murder from culpable homicide as being where death is related to an assault but where it is not readily foreseeable that death would be the end result. Let me put it like this, if you fire a gun into a room, blindly- but knowing that people are present it is foreseeable that if you hit one of them – then they may die. This is murder. If you throw someone off a stationary train onto an empty platform it is not easily foreseeable that they will meet their death as you could not infer the mens rea for murder in this situation.

This is probably backed up by a statement by Lord Justice General McNeil that said “ If one purposes to inflict a very slight injury, which he has no right to inflict, and death unexpectedly and out of all reasonable calculation ensues, that is culpable homicide; if a more serious injury was intended, the case may be one of murder”.

So, again without going on too much longer Mr Pollock has put himself in a situation where he could easily have been a victim of his own actions and spent a long time in jail for his actions that he only considered lobbing a yob off a train.

This is where my problem lays, the lack of knowledge that the ordinary man – someone that scots law is based upon – has. We are taught in school the basics of reading and writing, counting, making a shoehorn, a spice rack, baking a scone and playing the keyboard. Why, and this is beyond me, are we not taught the basics of the law?. My overview here is not completely in depth, it is also not 100% accurate as there is some areas that I have smudged to give a general overview as opposed to an in depth one. I am not saying I am lying either, what I mean is that there is often more to the story than I am letting on however the general principles are there and that is all that is required to be taught in schools up and down the land. I have missed out the PF’s likely-hood of charging in the public interest along with other potential charges such as tresspassing that could turn up at some point along the way . We do not need to teach the complete Stair memorial to pupils but I feel a general overview of Scots law would put people in a better standing to make more educated decisions about the way they act in public. If we teach people the potential outcomes then it may teach people to not act so off the cuff as we witness in this video.His father has put across the view that Mr Pollock acted in a good man’s way, seeing a situation and dealing with it. I bet at no point did any of the above information I have given cross his mind. In some respects he could be classed as lucky, one wrong move and he could be looking at a lengthy jail sentence and a future ruined by his initially noble actions. I am not here to Judge Mr Pollock, Mr Main or the Train Conductor but only point out the potential ramifications of such a situation for all involved. Thought does not always enter into people in the heat of the moment, it is not human nature. I do however believe that if some legal overview was taught in schools then people may be more aware of the situation unfolding around them and deal with it in a better and more informed way rather than acting first and realising later what a mistake they have made.Mr Pollock has acted as Judge, Jury and Executioner in this matter, and that is just an acceptable way to go about things in the society that we live in. He had no right to act in that way and, thankfully, no severe harm has come to himself or his victim.No one will class Mr Main as an innocent victim as such, he clearly has questions in need of answering regarding his own conduct by it did not justify ‘The big man’ to take the law, by all accounts, into own hands.

Surely the way to defeat those we feel are breaking the rule is to demonstrate that our values are superior to theirs. That their actions will never defeat law and order and that he who would commit a crime will feel the full power of the rule of law. Arrest, a trial with a well presented prosecution case and a fully prepared and argued defence case followed by a conviction and sentence. I have always understood THIS to be justice.
Such justice is something society would be entitled to brag about. Not the actions of ‘The Big Man’

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