First Appellant: McCluskey; Paterson Bell

Second Appellant: McCall; Capital Defence

Respondent: Scullion, A.D.; Crown Agent

18 October 2011

Introduction
[1] The evidence in this case, as summarised by the sheriff in his report to this court, was to the following effect.

[2] During the night of 2 to 3 March 2009 nine persons, including the two appellants, entered the airfield at Aberdeen Airport through a breach in the perimeter fence. Using metal fencing, seven of these people, including the appellants, erected a structure on a taxiway used for the movement of aircraft on to and off the runway. Five of them locked themselves to the structure. The other two intruders climbed on to the roof of the terminal building, erected a banner, and chained themselves to metal railings. At about 3.25am they were seen by the airport duty manager, who called the police. When the police arrived, they approached the intruders and were told by the second appellant that their intention was to hold a peaceful protest and to disrupt operations for the day. The protestors later repeated that they did not intend to leave. The duty manager was concerned that the protestors might gain access to the aircraft stands and cause damage to the aircraft parked there. He accordingly asked the police to guard the aircraft. He was also concerned that there might be other protestors out on the airfield, which required to be searched.

[3] As a consequence of the actings of the protestors, the entire airport was shut down. No flights could take off, no incoming flights could land, and operations at the helicopter port were suspended. Aberdeen Airport is a busy airport used by domestic and international airlines, and by the companies which operate helicopters servicing offshore rigs. They also carry out search and rescue operations. The first departure was scheduled for 6.20am. The first arrival, from Heathrow, was due at 7.20am but was diverted to Edinburgh. Eleven aircraft departures were affected before normal flights were resumed at about 8.55am. Twenty-three helicopter flights were delayed. Airline passengers and oil workers were consequently deprived of their flights or delayed, causing stress, anxiety and anger. Some 500 to 600 passengers were delayed within the terminal building. Some passengers shouted at airport staff; some were reduced to tears. One of the delayed flights was an air ambulance which was due to transfer a baby in an incubator. It was due to leave at 8.00am. The police informed the protestors that the air ambulance required to leave to pick up a critically ill baby. The protestors queried whether it was essential that the flight use that taxiway. Following negotiations, the protestors left the taxiway at about 8.20am. The air ambulance was able to take off at 8.35am.

[4] The nine protestors were arrested and charged with breach of the peace. They were subsequently convicted on indictment of a charge in the following terms:

"on 3 March 2009 at the premises occupied by Aberdeen Airport Ltd ... you ... did conduct yourselves in a disorderly manner, enter said premises, climb onto the roof of the terminal building there, erect a banner, erect fencing on an aircraft taxiway, secure yourselves to said fencing and to a railing on the roof of the said terminal building and refuse to leave when requested, cause Aberdeen Airport to close, preventing aircraft from taking off or landing there, place the lieges in a state of fear and alarm and commit a breach of the peace."

They were fined sums ranging from £300 to £700. The appellants have appealed against their conviction and sentence.

The submission of no case to answer
(i) Reasons

[5] The appellants' first ground of appeal is that there has been a miscarriage of justice in that the sheriff failed to provide any reasons for repelling their submission of no case to answer. This is said to have been contrary to the appellants' rights under article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

[6] In his report to this court, the sheriff narrates the evidence given by the 22 witnesses led by the Crown, which we have summarised above. He states that, when he repelled the submission of no case to answer, he stated in court that the reason he was doing so was that he was satisfied that the Crown evidence, taken at its highest, was sufficient to require each of the accused to answer the charge. He explains that he did not refer to the evidence in detail or highlight any individual witness's evidence, as the only issue for the court at that stage of the proceedings was one of sufficiency. This explanation was criticised by counsel for the appellants on the basis that an accused person needs to know what Crown evidence the sheriff considers to provide a sufficiency, so that he can "target" that evidence during the defence case, and also so that, if convicted by the jury, he will be able to understand the evidential and legal basis upon which his conviction must rest. Reference was made to the judgment of the Grand Chamber of the European Court of Human Rights in Taxquet v Belgium, 18 November 2010.

[7] A decision to repel a submission of no case to answer is not a determination of a criminal charge. It merely signifies that the presiding judge or sheriff is not satisfied that the evidence led by the prosecution is insufficient in law to justify the accused's conviction. We have not been referred to any judgment of the Strasbourg court which suggests that article 6 requires detailed reasons to be given for a decision of that character. The Taxquet judgment was concerned with the adequacy of the reasons given for a conviction under Belgian procedure. It was distinguished by the Strasbourg court in its decision in the case of Judge v United Kingdom, 8 February 2011, which concerned a conviction on indictment in Scotland. That decision confirmed that Scottish procedure, under which the jury's verdict is given in a framework which includes addresses by the prosecution and the defence as well as the presiding judge's charge to the jury, and which also includes other procedural safeguards such as the judge's duty to accede to a submission of no case to answer in appropriate circumstances, meets the requirements of article 6 in relation to the giving of reasons for the jury's verdict.

[8] In the circumstances of the present case, it appears to us to have been obvious that there was sufficient evidence to justify a conviction of breach of the peace. The Strasbourg jurisprudence does not support the contention that it was necessary for the sheriff to say more at the time of his decision than he did. Nor do we consider that our own common law imposed any such duty upon him in the circumstances of this case.

(ii) Error of law
[9] The appellants' second ground of appeal is that the sheriff erred in law in repelling the submission of no case to answer, since "the conduct in question occurred in private and there was no realistic risk of it being discovered". This contention is based upon the fact that the protestors could not be seen by members of the public. In that connection, reliance was placed upon the cases of Harris v HM Advocate 2010 SCCR 15 and Harris v HM Advocate 2010 SCCR 931.

[10] Those authorities are not in point. They were concerned with situations in which the conduct in question did not cause or threaten disturbance to the public peace. In the present case, there was ample evidence of disturbance to the public peace. The fact that the persons whose conduct caused that disturbance were not visible to the general public is of no consequence.

(iii) Insufficient evidence
[11] The appellant's third ground of appeal is that there was insufficient evidence that the conduct was likely to threaten disturbance to the community: this was a peaceful protest, and any annoyance and frustration felt by passengers had been the result of what they were told by airport staff. Tears and anger did not in any event amount to a serious disturbance. We reject this submission. We have summarised the evidence. It included evidence that, amongst other consequences of the appellants' behaviour, some passengers shouted at airport staff and others were reduced to tears. The disruption of the flights, including the delaying of an air ambulance required to collect a critically ill baby, and potential disruption of helicopter search and rescue operations, was plainly liable to threaten public safety and cause serious disturbance to the community, as indeed it did.

The sheriff's directions to the jury
(i) Breach of the peace
[12] It was argued next that the sheriff failed to give adequate directions that breach of the peace required conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. The sheriff gave the jury a definition of breach of the peace using that precise form of words. He went on to say that the conduct in question must be genuinely alarming and seriously disturbing to ordinary reasonable persons. We can see no error or inadequacy in those directions. We would however add, particularly in the light of the evidence in this case, that the jury could aptly have been directed, in accordance with the current version of the jury manual issued by the Judicial Studies Committee (but not the version available at the time of the trial), that the conduct must "threaten public safety or serious disturbance to the community" (emphasis added). Given the evidence of disruption to an air ambulance, and potential disruption of helicopter search and rescue operations, the jury would have been entitled to convict on the basis of the threat to public safety even in the absence of serious disturbance to the community.

(ii) Private conduct
[13] It was argued next that the sheriff failed to give directions about how to determine whether conduct is private and, in relation to conduct occurring in private, about what may constitute a realistic risk of discovery. Reference was again made to the two Harris cases and to other cases concerned with similar situations. As we have explained, these authorities are not in point. The conduct in question was not of a private character. It was a protest at a public airport, designed to disrupt the operation of the airport and inconvenience the members of the public intending to use the airport, and having that result. Directions of the kind desiderated were unnecessary and inappropriate.

(iii) Convention rights
[14] It was argued next that the sheriff failed to direct the jury as to the question whether a guilty verdict was a proportionate response and so permissible under articles 10(2) and 11(2) of the Convention. The jury, it was argued, must be directed on the law relating to articles 10 and 11, and on how to apply the appropriate tests to the evidence, in order to determine whether conduct which might otherwise constitute a breach of the peace could be categorised as criminal without violating the Convention rights of the accused.

[15] This submission appears to us to be based upon a misconception. This court is only concerned with the question whether the appellants' convictions violated Convention rights established by the Human Rights Act 1998. The answer to that question depends upon whether the undoubted interference with the appellants' rights of freedom of expression and freedom of assembly was justifiable under articles 10(2) and 11(2). It clearly was, if the appellants were found to have committed a breach of the peace as libelled in the charge against them. According to the consistent case law of this court the Convention rights to freedom of expression and freedom of assembly do not entitle protestors to commit a breach of the peace: see eg Jones v Carnegie 2004 JC 136 and Quinan v Carnegie 2005 1 JC 279.

[16] Those decisions followed the approach adopted by the European Court of Human Rights, in particular in the case of Lucas v United Kingdom [2003] 37 EHRR CD 86. The applicant in that case had taken part in a demonstration at Faslane, in which she and other protestors sat in the public road leading to the naval base and refused to move. She was arrested and charged with breach of the peace. She was subsequently convicted and fined £150. The Strasbourg court found that her complaint of a violation of articles 10 and 11 was manifestly ill-founded. Her arrest and detention had been "prescribed by law": in particular, the definition of breach of the peace in Smith v Donnelly 2002 JC 65 was formulated with the degree of precision required by the Convention and provided sufficient guidance to individuals as to the consequences of their actions. The arrest, detention and conviction of the applicant pursued the interests of public safety and/or the prevention of disorder, and therefore pursued one or more of the aims listed in articles 10(2) and 11(2). The actions of the police in arresting and detaining her, and of the national court in convicting and sentencing her, were held to be proportionate to the legitimate aim pursued, in view of the dangers posed by her conduct in sitting in a public road and the interest in maintaining public order, as well as the relatively minor penalty that was imposed. In the cases of Jones and Quinan, this court applied that approach in the circumstances of a range of other protests.

[17] Accordingly, if the jury are accurately directed as to the nature of the offence of breach of the peace, their verdict will not constitute a violation of the Convention rights under articles 10 and 11, as those rights have been interpreted by this court in the light of the case law of the Strasbourg court. It is unnecessary, and inappropriate, to direct the jury in relation to the Convention.

[18] The present case is concerned with a more serious breach of the peace than the case of Lucas, or the cases of Jones v Carnegie and Quinan v Carnegie. The danger to public safety was more grave, as is apparent from the delaying of the air ambulance and the suspension of the helicopter operations which service the off-shore rigs and carry out search and rescue operations. The degree of disruption of public order, and consequent risk of disorder, caused by the closure of a major airport was greater than one would expect to have resulted from a person sitting in the road outside Faslane. We have no doubt that the appellants' conviction of a breach of the peace was justifiable in terms of articles 10(2) and 11(2).

Sentencing
[19] Finally, it was submitted that the procedure followed by the sheriff following the appellants' conviction had been incompetent, with the consequence that he had had no power to impose a sentence.

[20] It appears that, following the appellants' conviction on 25 June 2010, the Crown moved for sentence and narrated that certain financial losses had resulted from the protest. The Crown had sought to adduce evidence to that effect during the trial, but the sheriff had upheld an objection to the relevancy of the evidence. We have difficulty understanding why he did so, as the evidence was relevant to sentence. In any event, those acting for the appellants and their co-accused disputed that any loss had been caused, and the sheriff accordingly decided that a proof in mitigation was necessary. According to the minute, the sheriff

"continued the case for a proof in mitigation to 25 August 2010 and deferred sentence in respect of all accused also to 25 August 2010 in respect that said proof in mitigation is calling and said proof may assist in determining the final disposal of the case."

[21] On 25 August 2010, it was submitted on behalf of the appellants that the case has been adjourned under section 201 of the Criminal Procedure (Scotland) Act 1995, which permits a hearing to be adjourned for a period not exceeding eight weeks "for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with [the] case". Since the period of eight weeks had been exceeded, it was not competent for the court to impose any sentence. The sheriff rejected that submission. In his report to this court, he states that what had been done on 25 June 2010 was not an adjournment of the case under section 201 of the 1995 Act, but a deferral of sentence under section 202. Under that provision, there was no maximum period for which sentence might be deferred.

[22] Before this court, the Advocate Depute conceded that what had occurred could not be regarded as a deferral of sentence within the meaning of section 202. We agree. The court was not in a position to proceed to sentence on 25 June 2010, and no question of deferring sentence could therefore arise: cf. Wilson v Donald 1992 SCCR 654 and Douglas v Jamieson; Douglas v Peddie 1993 SCCR 17. On the basis that section 201was applicable, the Advocate Depute invited the court to exercise its power to excuse a procedural irregularity, under section 300A of the 1995 Act. That course of action was opposed by counsel for the appellants, on the basis that the requirements of section 300A were not satisfied: the irregularity had not arisen because of mistake or oversight or other excusable reason, but because of a deliberate decision by the sheriff, whose error of law was not an excusable reason.

[23] It is unnecessary for us to consider section 300A in this case, as we do not accept that the sheriff adjourned the hearing under section 201. That section applies only where the case is adjourned "for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with [the] case". The sheriff did not adjourn the case for either of those purposes. He adjourned it in order for evidence to be led in relation to matters which were in dispute between the parties, and on which he had to adjudicate, before he could proceed to sentence. An adjournment of that nature is not made in the exercise of any statutory power but under the inherent common law powers of the court: see Burns v Lees 1994 SCCR 780; McSporran v HM Advocate 2011 SCCR 484.

Conclusion
[24] For the foregoing reasons the appeals are refused.