IN STATED CASE BTY A.M. AGAINST THE PROCURATOR FISCAL, KILMARNOCK
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 7
HCA/2014-004521-XJ
Lord Brodie
Lord Drummond Young
Sheriff Principal Stephen QC
OPINION OF THE COURT
delivered by LORD BRODIE
in
STATED CASE
by
A M
Appellant;
against
THE PROCURATOR FISCAL, KILMARNOCK
Respondent:
Appellant: S McCall; John Pryde & Co, SSC, Edinburgh (for Levy & McRae, Glasgow)
Respondent: Erroch AD; Crown Agent
28 January 2015
[1] On 5 September 2014 the appellant was convicted after trial in the Justice of the Peace Court of a charge in the following terms:
“on 22 May 2013 at [J Road] and [C Street] and elsewhere….you [AM] did conduct yourself in a disorderly manner and within a motor vehicle follow [A] and [B], place them in a state of fear and alarm for their safety and commit a breach of the peace”.
The appellant was admonished.
[2] At trial, at the close of the evidence for the prosecution, a submission had been made on behalf of the appellant in terms of section 160 of the Criminal Procedure (Scotland) Act 1995 that she had no case to answer. The Justices rejected that submission. At a previous diet, on 16 April 2014 a plea to the competency of the charge had been debated and repelled.
[3] The appellant appeals her conviction by way of stated case. The questions submitted for the opinion of the court are:
“1. Did we apply the correct test in determining the no case to answer submission?
2. On the basis of our findings in fact, was there sufficient evidence to convict the accused of breach of the peace?”
[4] The findings in fact made by the Justices, insofar as relevant to the questions in the stated case, are as follows:
“1. The accused…lives with her husband and three sons at the address on the complaint…Her sons attend [the local primary school].
2. On 22 May 2013 a book fair took place at [the local primary school] between 3 and 4pm. The accused attended the book fair shortly after 4pm with her sons. The book fair was staffed by two classroom assistants from the school [B] and [A]. Shortly after 4pm an altercation took place at the location of the book fair, which resulted in the two classroom assistants feeling it necessary to alert management at the school to the incident.
3. Sometime between 3.15pm and 4.30pm the accused and her children left the school. They made [for] the family car …which was parked in [J Road] and got into it. The accused was driving the car.
4. Sometime between 4.15pm and 4.30pm [B] and [A] left the school on foot entering on to [C Street]. On exiting the school, they turned right towards [J Road].
5. As the witnesses were walking across the school playground from north to south, the accused was driving her car in the same direction, on [J Road], which runs approximately parallel to the route the witnesses were taking.
6. The witnesses began to walk westwards along [C Street]. As they did so the accused’s car reached a crossroads of [C Street] and [J Road]. The accused had right of way, but stopped to allow a car exit from [C Street] on to [J Road]. The speed limit at [C Street] and [J Road] is 20mph. There were traffic calming measures in place including a raised junction, speed humps, ’SLOW’ markings on the road and ‘School’ signage.
7. The accused then turned left on to [C Street] and began travelling eastwards. The witnesses were already on [C Street] walking westwards. Both parties were now travelling towards each other, each at around walking pace.
8. The accused drove past the witnesses, then through a car park at the sports centre, exiting back to [C Street], this time facing west, the same direction as the witnesses. The accused proceeded along [C Street] and passed the witnesses. The accused then turned left on to [J Road] then left the area. Both witnesses were alarmed by the accused’s behaviour. [B] was also very anxious and frightened. [A] was uncomfortable and intimidated, and felt scared.”
[5] The Justices record in the stated case that following their rejection of the submission of no case to answer, the appellant gave evidence. The Justices found much of that evidence to be unreliable and not credible. Where the appellant’s evidence conflicted with the evidence of the witnesses for the Crown, the Justices preferred the evidence of the Crown witnesses.
[6] In the course of the respective submissions under reference section 160 of the 1995 Act, the Justices were referred to the following authorities: Smith v Donnelly 2001 SCCR 800, HMA v Greig 2005 SCCR 465, McGuiness v Brown 2013 SCCR 442 and Hay v HMA 2012 SLT 569.
[7] We turn to the two questions in the stated case and, first, the question as to whether the Justices applied the correct test when determining the no case to answer submission. On behalf of the appellant Ms McCall drew attention to the following passage in the stated case:
“We are aware that there has been a large overlap in the legal argument put forward during the defence case to the court at various stages in the proceedings. Initially when the preliminary point was raised, the court’s role was to consider is there any situation whereby ‘conduct yourself in a disorderly manner and within a motor vehicle follow (two people) and place them in a state of alarm for their safety’ could be a breach of the peace. After the section 160 submission, where the test changes and what we need to consider is; if we believe everything that we have heard in evidence, is there a sufficiency of evidence to say that it falls within the behaviour alleged in the libel, which has established can amount to a breach of the peace”.
Ms McCall submitted that in that passage the Justices disclosed that what they had done in considering the evidence was to determine whether what had been libelled had been spoken to in evidence and not whether what had been spoken to might meet the two-part test of what amounts to a breach of the peace.
[8] The test for determining a submission of no case to answer in terms of section 160 of the 1995 Act is whether the evidence led by the prosecution is sufficient in law to justify the accused being convicted of the offence charged. At this stage the case is to be taken at its highest for the Crown, it is to be assumed that the evidence led will be accepted and that any inferences available from that evidence which are favourable to the prosecution case will be drawn. Having considered the terms of the stated case, we are in no doubt that the Justice understood that. The suggestion on behalf of the appellant is that by referring to what was charged as being a crime known to the law of Scotland, when delivering their decision in respect of the section 160 submission, the Justices were indicating that what they had considered was the relevancy of the charge or perhaps whether what was libelled had been spoken to in evidence and not the sufficiency of the evidence led. The Justices report that what was said when announcing the decision on the section 160 submission was:
“We considered matters very carefully. We have been informed of matters in this court on 16 April 2014. Consequently we do not concern ourselves whether or not this is an offence known to the law of Scotland, the court has decided that it is. We need to consider if the evidence today, at its highest could overcome the obstacles put forward by the defence today. We are persuaded by the Crown that at its highest, the evidence does. So there is a case to answer, and the submission is repelled”.
In making these remarks, the Justices demonstrated that they were addressing the section 160 criterion. The reference to what was charged being an offence known to the law of Scotland can be readily understood given that both on 16 April 2014 when a plea to the competency of the complaint had been argued and in the course of the section 160 submission, reference had been made to the decision of this court in Smith v Donnelly where what was argued was that breach of the peace, as it had come to be defined by the court in Scotland, was so wide and therefore so vague that it did not meet the requirements for certainty imposed by article 7 of the European Convention on Human Rights. Moreover, in a passage immediately following that pointed to by Ms McCall, the Justices report as follows:
“We applied ourselves to considering all the evidence presented by the Crown to this point, and had no hesitation in satisfying ourselves that the behaviour could be considered disorderly, did place the witnesses in a state of fear, and as such did threaten public order. We were therefore satisfied a guilty verdict could be returned if we later decided that we believed all the evidence so far”.
While it might be argued that the issue could have been expressed with greater exactitude, we are quite satisfied that the Justices were aware of the relevant test and must be taken to have applied it. Whether their judgment was one which this court should support is the matter raised by the second question. We answer the first question in the affirmative.
[9] As was held in Smith v Donnelly what is required to constitute the common law offence of breach of the peace is proof of conduct severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community. Conduct which is merely annoying, upsetting or otherwise breaches decorum is not enough. What is required “is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person” and gives rise to “a reasonable apprehension of disturbance to the public peace”: Smith v Donnelly supra at 807C-D. Here the Justices recognised that the case was “minor in the great scheme of things”. They were nevertheless prepared to regard it as criminal albeit “not one of the most serious crimes that we will hear”. Whether conduct is capable of fitting into the definition provided in Smith v Donnelly is a matter of fact and degree and primarily one for the court of first instance: Montgomery v PF Kilmarnock [2015] HCJAC 2, citing Russell v Thomson 2011 SCCR 77. However, it is a serious step to label conduct which does no actual harm and offers only remote prospects of causing harm as criminal, however petulant and ill-mannered that conduct may be. The Justices found [A] and [B] to have been actually alarmed by the appellant’s conduct. That is not determinative: Montgomery v PF Kilmarnock supra, citing Jones v Carnegie 2004 JC 136 at paragraph [13]. [B] is said to have been anxious and frightened. [A] is said to have been uncomfortable, intimidated and scared. It is not entirely clear why the appellant’s behaviour, as described in the findings in fact, should have provoked such strong reactions. Had we information about what had happened in the course of the “altercation” which had occurred at the location of the book fair, we might be able to answer that question. However we do not have that information. We do not even know who was involved in the altercation. Finding-in-fact 2 does not disclose that. There is no doubt good reason for that. The Justices may have heard no more evidence than what is recorded at finding-in-fact 2. Had the respondent’s depute attempted to lead such evidence it would have been open to objection as irrelevant, given the narrow terms of the libel. As Ms McCall submitted, the question for this court is whether “on the basis of [the] findings-in-fact was there sufficient to convict the appellant”. On the findings-in-fact, and no doubt on the evidence also, the altercation is simply not available to “contextualise”, as Ms McCall put it, the driving. As the Justices correctly observed, behaviour has to be judged in its context but for the purposes of considering the second question in this stated case, the context is limited to what appears in the findings in fact. The Justices record their “belief” that the appellant’s action in turning her car around and driving towards them was done with the intention of intimidating [A] and [B]. That is not, however, a finding in fact and we rather doubt whether there is sufficient to allow such an inference to have been drawn.
[10] With all respect to the Justices, it is our opinion that they have erred in relation to both matters which require to be demonstrated to establish a case of breach of the peace: that the conduct complained of was severe enough to cause alarm to any reasonable person and to threaten serious disturbance to the community. The advocate depute accepted that that was so. While the Justices were entitled to have regard to the evidence that [A] and [B] spoke of being in fear and alarm we do not share the Justices’ view that this was not unreasonable “given the nature of their being followed” at least if what the Justices mean is that a reasonable person of average resilience would be alarmed by the conduct which is described in the findings-in-fact, and only that conduct. As far as the second matter is concerned the Justices took the view that “if the public at large were aware of or informed that a vehicle appeared to be loitering outside a primary school and following people, and the context in which it took place in, then it is reasonable to expect that they might react to that”. The Justices went on to say that “we can readily envisage a situation where the public may find this disturbing, may wish to make inquiry of anyone behaving in such a way, and that some may wish to intervene to discourage or prevent it”. We consider this to be extreme but the premise is false, the appellant was not “loitering”, nor was she “following” in the sense of repeated behaviour. The conduct complained of here occurred over a relatively short period of time. It involved [A] and [B] and no other person. The appellant, who was accompanied by her children, did not get out of her car. As the Justices record this was not a case where the appellant raised her voice. There was no shouting or swearing. There was no threat of violence. There was no revving of the vehicle’s engine. No honking of the horn. There was no staring. In these circumstances we would regard the prospect of serious disturbance to the community as being remote. In our opinion, whatever else may be said about the appellant’s conduct, it did not, on the basis of the Justices’ findings-in-fact, justify a conviction of breach of the peace. We accordingly answer the second question in the negative. The conviction will be quashed.