APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Mackay of Drumadoon
 HCJAC 75
Appeal No: XC316/09
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE
HER MAJESTY'S ADVOCATE
Appellant: Shead; Paterson Bell, Edinburgh
Respondent: Cherry, A.D.; Crown Agent
16 July 2010
 On 24 March 2009 in the High Court at Glasgow the appellant was convicted of a number of offences involving serious sexual abuse of his two sons. In addition, he was convicted of two charges of breach of the peace, against which alone he now appeals. Those charges were in the following terms:
"(3) on various occasions between 1 April 1996 and 28 February 2003, both dates inclusive, the exact dates being to the Prosecutor unknown, at ... [an address in Lanarkshire and at another address in Argyll], the exact location being to the Prosecutor unknown, you did conduct yourself in a disorderly manner, threaten to harm [A].... your son, c/o Strathclyde Police, ............., his family and others if he gave information to any person in respect of the acts libelled in charges (1) and (2) hereof, place him in a state of fear and alarm and commit a breach of the peace;
(6) on various occasions between 1 November 1998 and 28 February 2003, both dates inclusive, the exact dates being to the Prosecutor unknown, at .... [an address in Lanarkshire and at another address in Argyll], the exact location being to the Prosecutor unknown, you did conduct yourself in a disorderly manner, threaten to harm [B]... your son, c/o Strathclyde Police, ............, his family and others if he gave information to any person in respect of the acts libelled in charges (4) and (5) hereof, place him in a state of fear and alarm and commit a breach of the peace."
Circumstances of the offences
 The complainers' mother had separated from the appellant at the time of the offences, which took place during their regular access visits with him. The first complainer was aged between 5 and 12 years old and the second between 5 and 9 years old at the time. The access visits normally took place on a Sunday afternoon. However, the complainers would occasionally stay overnight with the appellant. Following the visits they were returned to their mother's care. For around three years after the separation she lived with the complainers at her parents' house in Lanarkshire. In about 2000 the appellant went to work in Ireland and access became less frequent. The offences took place in a two-bedroom flat, in which the appellant was a lodger and which was owned and occupied by one of his male work colleagues, and at rented holiday accommodation in Argyll, comprising one open-plan room, in which the complainers, the appellant and his work colleague slept. There was evidence that, on at least one occasion, the appellant's work colleague was present when an act of sexual abuse was perpetrated upon one of the complainers at the flat. He appears to have been complicit in that abuse. There was no evidence, however, that he was present at the time of any other abuse. The threats and sexual abuse were not immediately reported by the complainers. Although they had said nothing about it to their mother, she became suspicious that they were being sexually abused by the appellant. A police investigation took place in 1999, but did not disclose sufficient evidence for a prosecution. The complainers spoke to the police again in 2006 and a prosecution was then instituted.
Directions by the trial judge
 The trial judge gave the jury the following directions on the crime of breach of the peace:
"This crime covers many types of anti-social behaviour, ladies and gentlemen. It can be committed in public or in private. If it is in private, there must be a realistic risk of it being discovered. The conduct must be severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. [It is] conduct which in the particular circumstances in which it has occurred is genuinely alarming and seriously disturbing to any reasonable person. There does not need to be evidence of the conduct having that result. It is sufficient if you decide that the result reasonably could be expected. So it is enough if a reasonable person would be likely to be distressed and alarmed, having regard to the nature of the conduct in the circumstances and context in which it took place. There does not need to be evidence that the accused intended that result. Again, it is enough if you decide that such a result was likely, so it is the potential of the conduct that you look at. Therefore, ladies and gentlemen, in deciding whether or not there has been a breach of the peace, you will have to look both at the nature and the quality of the conduct proved and also at its likely consequences. You will also have to look at the context in which that conduct took place. It is a matter entirely for you, but you may have little difficulty in concluding that if the accused did make the threats of harm alleged in these charges this conduct amounted to a breach of the peace. For the Crown to prove these charges you would have to be satisfied, firstly, that the accused behaved in the way described in the charges and secondly, that in the circumstances in which it took place that conduct was or was likely to be genuinely alarming and seriously disturbing to the ordinary reasonable person. Now ladies and gentlemen, just one more point about these charges of breach of the peace. You will see that each of them refers to the preceding charges of sodomy and lewd practices, so that in charge (3) there is a reference to charges (1) and (2) and in charge (6) there is a reference to charges (4) and (5). Therefore it would not be open to you to convict of breach of the peace unless you first convicted the accused of one or other of the charges to which the reference is made in the narrative of the breach of the peace allegation."
Submissions for the appellant
 The first ground of appeal presented by Mr Shead was that as a matter of sufficiency the evidence presented did not satisfy the second part of the conjunctive test for breach of the peace: there had been no public element to the appellant's behaviour, such as was likely to threaten serious disturbance in the community (Harris v HM Advocate 2010 SCCR 15, per Lord Justice General Hamilton at para ; Paterson v HM Advocate 2008 JC 327; cf Young v Heatly 1959 JC 66). The conduct took place exclusively in private and the averments of "disorderly conduct" were empty of any real content (Harris v HM Advocate, paras -).
 The second ground of appeal was that the trial judge had not given directions in accordance with the conjunctive test. His report (at pages 13-14) made clear that he had not applied his mind to the correct test. While he had given directions on the need for a "realistic risk" of private behaviour being discovered, these had been incomplete and apt to mislead. It was not sufficient that a child might, in due course, inform a responsible adult of the threats. In suggesting otherwise, the court in Bowes v McGowan  HCJAC 55 may have fallen into error (per Lord Osborne at para ). That decision was not easily reconciled with the Opinion of the Court in Harris v HM Advocate. There had to be a very close temporal link between the behaviour and any serious disturbance to the public peace. That might be either contemporaneous or involve some immediacy of behaviour, depending on the circumstances. However, a private conversation did not readily give rise to such a disturbance. The misdirection was compounded by the suggestion that the jury might have "little difficulty" in concluding that the conduct amounted to a breach of the peace. Even if the threats were proved, complicated issues remained. There was an absence of any directions in that regard. There had been a material misdirection. As it could not be said that, given the proper directions, the jury would necessarily or inevitably have convicted the appellant, a miscarriage of justice had resulted (Murray v HM Advocate 2001 SCCR 114, Touati v HM Advocate 2008 SCCR 211; cf Coubrough's Executrix v HM Advocate 2010 SLT 577, per Lord Carloway at para , referring to McInnes v HM Advocate 2010 SLT 266).
Submissions by the Advocate depute
 The Advocate depute submitted that there had been sufficient evidence to satisfy the conjunctive test. While the conduct had taken place in private, there had been a realistic prospect of its being discovered. Emphasis had to be placed on the potential for, as opposed to actual, discovery (Paterson v HM Advocate, per Lord Justice General Hamilton at para ). It was foreseeable that the complainers, on returning to their mother, might inform her of the threats, resulting in others taking the law into their own hands (Bowes v McGowan). Harris v HM Advocate could be distinguished on its facts: it did not involve any threats of harm; the comments were made to police officers at a police station and it could be assumed that they would not take the law into their own hands. That was different to a situation where young children, and their family, were the focus of threats to do harm. The issue of immediacy did not present a problem in the present case, where the contact visits were usually of a relatively short duration. The fact that the complainers had been threatened not to tell anyone might lead the court to a more generous view on the issue of immediacy.
 When the judge's charge was read as a whole there had been no misdirection. His initial directions as regards the need for a "realistic risk" of discovery of behaviour which took place in private was consistent with the conjunctive test (cf Paterson v HM Advocate). If there had been a misdirection, it had not resulted in a miscarriage of justice when one took into account the seriousness, importance and materiality of the error (cf Criminal Appeals, 2nd Edition, McCluskey and McBride at para 7.11). A wider test than that of inevitability had to be employed. One had to consider whether there was a "real possibility" that a different verdict would have been returned had proper directions been given (Coubrough's Executor v HM Advocate, per Lord Carloway at para ).
 If there was insufficient evidence to satisfy the conjunctive test for breach of the peace, the evidence presented in the present case could have resulted in a conviction for another crime. If one were to delete the words "conduct yourself in a disorderly manner" and the words "and commit a breach of the peace" from the charges, a valid charge of criminal threats would remain, notwithstanding the lack of a nomen iuris. The nature of the threats, being made to small children, were either of such gravity as to be an example of the first category of that offence, or, alternatively, given that their purpose was to prevent the complainers reporting the crimes committed against them, they provided an example of the second category of a threat made with an illicit purpose (Gordon, Criminal Law, 3rd ed., at para 29.62 ff; Hill v McGrogan 1945 SLT (Sh.Ct.) 18; cf Kenny v HM Advocate 1951 JC 104). Section 118(1)(b) of the Criminal Procedure (Scotland) Act 1995, when considered in conjunction with para 9(2) of Schedule 3, permitted the verdicts in relation to the charges of breach of the peace to be set aside and amended verdicts of guilty of threats to be substituted, even where the Crown had not sought a conviction for such offences at the trial (Sneddon and P v HM Advocate 2006 JC 23). There was little difference in the actus reus or mens rea of threats and breach of the peace.
Reply by Mr Shead
 Mr Shead submitted that the appeal should be resolved in the appellant's favour, without an alternative verdict being substituted. Buchanan v Hamilton 1989 SCCR 398 raised questions about the competency of doing so, where the Crown had not asked that that course be followed during the trial (per Lord Justice General Emslie at page 400). There were, however, conflicting authorities and the matter might require consideration by a larger bench (cf Sneddon and P v HM Advocate per Lord Maclean at para ; Anderson v Griffiths 2005 SLT 86, per Lord Justice Clerk Gill at para ). If it was competent, it would be unfair to return such an alternative verdict in the present case. As that prospect was never raised at the trial, the jury were not given relevant directions (see Sneddon and P v HM Advocate, per Lord Maclean at para ). It was not clear that, if they had been, they inevitably would have convicted the appellant on an alternative charge: the conviction should be quashed (Smith v HM Advocate 2001 SLT 438, per Lord Justice General Rodger at para ). Moreover, there were Convention implications in such a course being followed. The appellant was entitled to fair notice of the charge which he faced. His rights in that regard would be contravened if, for a conviction of breach of the peace, there was substituted a conviction for a vaguely defined more serious offence: in no way were the ambit of the offences the same (cf McMaster v HM Advocate 2001 SCCR 517, per Lord Cameron of Lochbroom at paras  - ). Difficult questions might arise - for example, whether the offence of criminal threats was article 7 compliant. It was ultra vires for the Crown to ask for such an alternative verdict in terms of section 57(2) of the Scotland Act 1998.
 In Harris v HM Advocate a court of five judges gave further consideration to the ambit of the crime of breach of the peace. It held (para ) that the court in Paterson v HM Advocate had correctly interpreted Smith v Donnelly as advancing a "conjunctive test", that is, that the conduct must not only be "severe enough to cause alarm to ordinary people" but additionally "threatened serious disturbance to the community" (the expressions used by Lord Coulsfield in the earlier part of para  of the judgment delivered by him in Smith v Donnelly 2001 SCCR 800). The court disapproved and overruled Young v Heatly.
 The decision in Harris v HM Advocate was delivered and published after the conclusion of this appellant's trial. The Jury Manual (issued by the Judicial Studies Committee) available to the trial judge did not reflect the law as so laid down. It is accordingly no criticism of him that he directed the jury in the way he did. At certain places in his charge he gives directions consistent with the conjunctive test but, when he came to direct the jury as to the particular circumstances disclosed by the evidence, he said:
"For the Crown to prove these charges you would have to be satisfied, firstly, that the accused behaved in the way described in the charges and secondly, that in the circumstances in which it took place that conduct was or was likely to be genuinely alarming and seriously disturbing to the ordinary reasonable person."
No reference was made to any community element. That was no doubt consistent with the way in which the trial was conducted. No challenge had been made in advance of it to the relevancy of either of charges (3) or (6) nor had there been any submission at the close of the Crown case that the accused had no case to answer in respect of these charges.
 The first and critical issue, however, in this appeal is whether there was before the jury evidence which could satisfy the conjunctive test. In submitting that there was, the Advocate depute referred to the evidence that the child complainers were, at the time of the offences, ordinarily resident with their mother and would return to live with her after each of the incidents - which had occurred at the appellant's residence in Lanarkshire and in rented accommodation in Argyll, where the appellant had access to them at the respective times. There was, she said, a real risk that, on the children going home after the incidents, they would report what had occurred to their mother. On such a report being made, there was a risk of serious disturbance. While the conduct constituting the breach of the peace was in private, it was in these circumstances "discoverable". That was sufficient.
 The question of discoverability of conduct perpetrated in private has been touched on in a number of cases. In Jones v Carnegie the court at para , having observed that it was not necessary to go so far as to cast doubt on the soundness of the actual result in Young v Heatly (now overruled), said:
"However, we would caution that where conduct complained of took place in private there requires to be evidence that there was a realistic risk of the conduct being discovered."
The court did not elaborate on what it meant by "the conduct being discovered".
 In Paterson v HM Advocate the court at para  described the conduct in question (inappropriate sexual conduct towards a young girl) as such that "if discovered" was likely to cause a serious reaction among adults. There the conduct was, in the first instance, in a public place (a stationery vehicle on a public road with the driver's door open) and, in the second, albeit in a private house, in close proximity to adult members of the girl's family.
 In our view the reference in these passages to discovery is not to be taken as encompassing a third party receiving, at a remote place and on a subsequent occasion a report of the earlier actings of an accused. If that were so, there would be almost no limit to the circumstances in which the community element of the crime was met and reporting, or the likelihood of reporting, of an incident many years after the event might be regarded as sufficient. In this case, the sexual abuse and the threat to do harm if information was given to anyone about the sexual abuse were reported by the victims only many years after the event. In our opinion a "realistic risk of the conduct being discovered" should be understood as referring to the risk of the conduct of the accused being come upon, that is to say being seen or heard, by a third party (or parties) or being brought to their attention, whilst that conduct continues or in the immediate aftermath of the conduct having come to an end. That is broadly consistent with the definition of "to the alarm of the lieges" given by Lord Justice Clerk Macdonald in Ferguson v Carnochan (1889) 16 R (J) 93 at page 94 as being "that what is alleged was likely to alarm ordinary people, and if continued might cause serious disturbance to the community". The risk of third parties at some remote location being informed of the conduct subsequently will not, at least ordinarily, suffice. There may, however, be borderline cases where the reporting to third parties is so immediately related in time and place to the conduct complained of that it can be regarded as part of the same event. Bowes v PF Aberdeen  HCJAC may have been such a case. There was no such immediacy and proximity in the present case.
 The Advocate depute submitted that, if we were against her on her primary argument, we should in each case substitute for the convictions of breach of the peace amended verdicts of guilty. This would involve stripping out of charges (3) and (6) the references to disorderly conduct and breach of the peace and leaving an averment that the appellant in each case threatened his son. Reference was made to section 118(1)(b) of and paras 2 and 9(2) of Schedule 3 to the Criminal Procedure (Scotland) Act 1995.
 The common law of criminal threats is not well-developed. Gordon - Criminal Law (3rd ed.) at para 29.62 divides them into two classes, those which are criminal in themselves (effectively, grave threats) and those which are criminal only when made with a certain motive or intention. The unspecified threats in the present case cannot, in our view, bring the appellant's conduct into the former class. What motive or intention will suffice to make the second class of threats criminal is not, on the authorities, altogether clear. The jury in the present case were not, of course, given any directions on this matter. A conviction for a criminal threat may also be more serious than one for breach of the peace.
 Whether this court in disposing of an appeal against conviction substitutes an amended verdict of guilty is a matter within its discretion. In the circumstances of this case we are not persuaded that that discretion should be so exercised as to substitute a verdict of guilty of criminal threats - even if technically open, which it is unnecessary to decide. It would appear, apart from anything else, that charges (3) and (6) were present on this indictment for essentially evidential reasons only, and may be thought to have fulfilled their purpose. In these circumstances this appeal is allowed and the convictions on charges (3) and (6) will be quashed. We shall hear the appellant's counsel on any consequential motion in relation to sentence.