Lord Carloway

Lord Mackay of Drumadoon

Lord Nimmo Smith

[2010] HCJAC 138

Appeal No: XJ188/10


delivered by LORD CARLOWAY

in the Reference by the Scottish Criminal Cases Review Commission








Appellant: Kennedy; McIntosh & MacLachlan, Glasgow

Respondent: Clancy QC AD; Crown Agent

26 November 2010

1. The Trial Procedure

[1] The appellant appeared at Glasgow Sheriff Court on a summary complaint which libelled that:

"between 6 February 2007 and 8 March 2007 at the premises of Wright, Johnstone and MacKenzie, Solicitors, ... Glasgow and at ... School, Glasgow you... did conduct yourself in a disorderly manner repeatedly harass [M], a teacher at [the] School and did by means of a letter threaten said [M], enter the playground, repeatedly fail to comply with requests to retreat from the teacher, place said [M] in a state of fear and alarm for her safety and commit a breach of the peace".

[2] After sundry procedure, the case called for trial on 22 February 2008. The appellant elected to represent himself. As the Sheriff recorded events in the subsequent stated case, at the outset of the trial diet the appellant explained that he had been unable to find an agent to act for him. Four agents had declined to do so and a fifth had withdrawn from acting. The appellant sought an adjournment, not to secure the services of a sixth agent, but because he was of the view that there had not been full disclosure to him, notably in the form of a statement by PC Stephen Kay, the arresting officer, and the name of a procurator fiscal who, he said, had instructed his arrest. The appellant also wished a commissioner appointed to take the evidence of his six year old son. The purpose of that was said to be to avoid the child giving evidence in court.

[3] The Sheriff refused the motion to adjourn, not being satisfied that there had been any failure to disclose relevant material and having regard to the likelihood that the trial would be adjourned part-heard in any event. That was indeed what happened; the adjourned diets being 27 February, when the Crown case was closed and the defence began, and 12 March 2008, when the Sheriff convicted the appellant, fined him £350 and made a twelve month non-harassment order.

[4] During the course of the trial, the playing of part of an audio tape of the appellant's police interview had been the subject of an objection by the appellant. The respondent had proposed to play only part of the tape, pursuant to an agreement reached with the appellant's previous agent, who had been concerned about extraneous prejudicial content. The objection raised was on the bases that: (1) the tape had been "doctored" by the removal of a question about the appellant's religious beliefs; (2) the whole tape ought to be played; and (3) the police questioning had been unfair. The Sheriff held a trial within a trial, although the appellant decided not to lead any evidence during that procedure. The Sheriff repelled the objection, being satisfied that none of the bases for the objection had been made out.

2. Findings in Fact

[5] M was the headmistress of a Primary School in Glasgow. She had raised interdict proceedings against the appellant. She was represented by a solicitor from Wright Johnstone and MacKenzie. The appellant appeared on his own behalf in that process too. On 6 February 2007, the solicitor received a handwritten letter dated 4 February requesting him to "give the note enclosed" to his client. The appellant had signed the letter, to which was attached a handwritten note. This note started with the sentence:

"In the name of Jesus, I am asking you to admit you have told evil lies about me. Admit that you have lied to your own lawyer and Council bosses".

It urged M to admit all her sins so that she would be forgiven. It concluded:

"If you do not, then the Lord, King of Kings, Lord of Lords, will condemn you to solitude.

If you do not tell the truth now, this letter and my voice, will be the last things you see and hear before being cast to Hell.

In God's name, Amen (signature of the appellant)".

Not surprisingly, the solicitor was alarmed by the note, the terms of which he immediately conveyed to M at the school over the telephone and then by fax. M was anxious, distressed, upset and placed in a state of fear and alarm. She had to stop work and go home. The police were called and the appellant was detained and interviewed. He admitted that it was possible that he had written the note.

[6] Some time prior to 8 March 2007, the appellant had been interdicted from approaching M, telephoning her, writing to her, approaching her at her place of work and placing her in a state of fear and alarm. However, it did not prohibit him from entering the playground of the school, apparently because he had children attending there. A white line had been painted across one end of the school playground, beyond which line parents were encouraged not to go, in order that the children could line up for class at the other end of the playground, some distance away. On 8 March, the appellant crossed that line with his youngest son and took him to the other end of the playground near to the door leading to the classrooms. The Sheriff found in fact:

"(20) This was under a pretext that the appellant wished to inform the said child's teacher that the child was not to go on a school trip that morning but should remain instead at school to do extra academic work".

[7] The appellant, who was wearing dark sunglasses, spoke to the child's teacher near the door to the classrooms. The teacher was apprehensive and wary of the appellant's intentions as she knew of the terms of the interdict, as did other members of staff. At this point M arrived at the door. She became frightened upon seeing the appellant, felt intimidated and was placed in a state of fear and alarm. She asked him repeatedly to retreat behind the white line, but he ignored those requests, making M more anxious and distressed. The appellant then stopped talking to the teacher, looked at M and walked slowly away across the playground. The police were called and arrested the appellant later at his home, purporting to use the power of arrest attached to the interim interdict.

[8] The Sheriff observed in his note (stated case p 16) that:

"I have no doubt that [the appellant's] mere presence was designed to intimidate [M] and was provocative. He went up to the school building on a pretext to speak to [the class teacher] about his son - it was quite unnecessary, a telephone call the day before would have sufficed. As indicated above, I was also entirely satisfied on the evidence that the appellant had written and posted or caused to have posted the note to [the solicitor] enclosing the letter to [M]. The Crown brought a single charge of breach of the peace referring to both 'incidents' and the Crown in its closing submission was, in my view, correct to state that the two matters must be taken together. The complainer was apprehensive at the mere sight of the appellant on 8 March 2007 because of the events of 6 February 2007 and the granting of the intervening interim interdict".

3. The Stated Case and Reference

[9] The appellant applied for a stated case. He complained that the Sheriff had erred by: (a) (i) failing to grant the adjournment; (a) (ii) admitting the tape of his police interview, which had not been provided in advance of the trial, was played only in part and was accompanied by an inaccurate transcription; (b) repelling a submission regarding the commission to take the child's evidence; and (c) finding the appellant guilty "in the face of no second source of evidence". However, in the final stated case, there were only two questions posed, viz:

"1 Was I entitled to hold that the evidence of the police interview of the appellant was admissible?

2 Was I entitled to convict the appellant on the facts stated?"

No additional questions were proposed by either party during the adjustment period.

[10] Leave to appeal was refused at first sift on the somewhat inadequate and circular basis: "for the reasons stated in the note to the stated case". The appellant applied to the second sift. He raised a new issue in his application concerning remarks made by the Sheriff to the effect that he had heard evidence that the appellant had behaved in an orderly manner. The second sift judges correctly did not address this, since it had not been raised in the stated case. They too refused leave to appeal on the more expansive basis that the appeal was unarguable because: "the Sheriff was quite entitled in law to hold that a breach of the peace was committed on the basis of the facts that he found proved". No reference was made to the issue posed in the first question.

[11] The appellant applied for a reference from the Scottish Criminal Cases Review Commission. The first ground for this was categorised as "judicial bias" breaching "the laws of natural justice". This raised again the objection to the interview and the refusal to adjourn, as well as a complaint that the initial arrest of the appellant had been for an alleged contravention of the interim interdict and not a breach of the peace. The application also complained that the Sheriff had given advice to the appellant not to call "further witnesses" because he had proved that he had behaved in an orderly manner. The Sheriff rebutted this last matter in response to a direct enquiry from the SCCRC. Ultimately, no reference was made on this ground.

[12] The second ground proffered by the appellant was categorised as "sufficiency" and summarised (Reference para 37) as:

"The Crown failed to provide a sufficiency of evidence and discharge the burden of proof. The Sheriff erred in law by returning a verdict of guilty".

In referring the case to the Court the SCCRC reasoned, in part, thus:

"38. The Commission gathers that the two incidents were initially libelled as separate charges on the complaint. The Commission does not know why the two were amalgamated in the complaint in its final form. The amalgamation leads, the Commission notes, to some difficulty in establishing from the stated case where exactly the Sheriff found the breach of the peace established. ...the Commission does not think that the episode concerning the letter would itself have amounted to a relevant charge of breach of the peace. At most, the Commission believes that it was background information, providing some explanation as to why the applicant's presence at [the school] might have provoked fear, alarm and apprehension. The fact that the Sheriff chose not to delete this part of the complaint leaves the impression that he may not have directed himself properly with regard to the legal test to be applied for an alleged breach of the peace, which is behaviour "severe enough to cause alarm to ordinary people and threaten serious disturbance to the community" (Smith v Donnelly)[2002 JC 65]".

Having analysed the dicta in Harris v HM Advocate 2010 SCCR 15, the Commission concluded that the sending of the letter did not amount to a breach of the peace. It then looked at the incident in the playground. It observed, partly under reference to Raffaelli v Heatly 1949 JC 101, that:

"47. ...the Sheriff found that the applicant had approached his child's teacher under a "pretext" (finding 20), but there is no real explanation of the means whereby he reached that conclusion. Given that he had three children at the school, the fact that [M] had seen the applicant in the playground on previous occasions (finding 16) is mundane. In any case, there is no finding to the effect that the applicant had seen [M] in the playground, which might at least have raised the suspicion that he was aware that an early morning round of the playground was part of the complainer's routine. The Sheriff states in his note that he rejected the applicant's evidence as incredible but, as the standard direction goes, it was not open for him then to assume that the opposite of that evidence was true. It is difficult to determine from the stated case where the factual basis lay for assuming that this incident was anything other than what it appeared on the face of it to be. But even if the Sheriff was entitled to this conclusion, the whole matter appears fundamentally to relate to motive. It may be the case that the applicant wished to discuss his child's education and it may be that he hoped to intimidate [M]. Perhaps he hoped to do both. In the final analysis, however, the presence of a parent in the playground on a spring morning is not akin to that of an intruder at a lit window after dark. Whilst the Commission accepts that the most reasonable course of action would have doubtless been to have complied immediately with the instructions of the head teacher, the crucial question is whether or not the applicant's continued presence - which, it may be inferred from the stated case, must have lasted for no more than a few moments - could have caused alarm to ordinary people and threatened serious disturbance to the community. It is, the Commission believes, understandable in the context of the earlier letter incident that [M] might have experienced fear and alarm in the presence of the applicant. It is, however, difficult to characterise the applicant's actions as 'severe' and not apparent how they threatened serious disturbance to the community. The Commission thus does not believe that his behaviour could reasonably be viewed as meeting the test for breach of the peace.

48. The Commission is, accordingly, of the opinion that the events at [the] Primary School too are incapable of supporting a charge of breach of the peace. It follows from this that the Commission considers that the applicant had no case to answer. The Commission believes that a miscarriage of justice may have occurred in this respect".

[13] On 17 March 2010, the court directed that a document formulating the grounds of appeal be lodged within one month. On 15 April 2010, a Note of Appeal was lodged in the following terms:

"The appellant has suffered a miscarriage of justice. The appellant's behaviour, complained of by the Crown witnesses and held by the Sheriff to amount to a breach of the peace, did not amount to a breach of the peace in that the appellant's behaviour was not serious or flagrant and would not have caused alarm to ordinary people nor threatened serious disturbance to the community".

Although the court appointed the appeal to a hearing at that time, the fixing of a diet was delayed on the application of the Crown pending the determinations in HM Advocate v Harris [2010] HCJAC 102 and WM v HM Advocate [2010] HCJAC 75.

4. Devolution Issue

[14] At the beginning of the appeal hearing on 26 November 2010, a ten page Devolution Minute, dated 25 November 2010, was presented. This complained about the appellant having been interviewed in detention by the police without a solicitor, contrary to Article 6 of the European Convention on Human Rights, in terms of Cadder v HM Advocate [2010] UKSC 43. It secondly protested once more about the Sheriff's decision not to adjourn the trial diet to enable the appellant to secure legal representation. The appellant referred to his agent withdrawing from acting at a trial diet, which must have been discharged, on 21 January 2010. The Minute thirdly raised again the issue of disclosure and complained that the appellant had not been able to photograph the locus or to obtain medical evidence about his son's "separation anxiety". Further complaints about the trial process were also raised.

[15] A Devolution Minute in an appeal process, which complains of the actions of the lower court, does not have a life of its own. It requires to be linked to the grounds of appeal raised. In this case, these grounds are expressed in the appellant's Note of Appeal and are simply that the appellant's conduct, as spoken to by the witnesses, did not amount to a breach of the peace. The Note defines the scope of the appeal. If the appellant had wished to pursue any of the many matters contained in his Devolution Minute, he should have included them in his Note of Appeal. If he had failed to do that, he should have applied to the court to allow that Note to be amended to include them. In either case, were the grounds to have been contained in the Note as originally framed or as amended, the Sheriff would have had to have been given an opportunity to deal with the points raised.

[16] But, in any event, the court would not have been prepared to grant an application to amend the grounds on the very morning of the appeal hearing. The appellant had ample time to frame his grounds of appeal, or to apply later to have them amended. Allowing such grounds to be incorporated in the Note at such extremely late notice would inevitably have led to a discharge of the hearing. Especially given that this case is a summary one, the court declined to entertain the Devolution Minute.

5. Submissions

[17] The appellant provided a helpful written outline submission. This, as amplified in oral argument, essentially followed the reasoning of the SCCRC to the effect that the sending of the letter could not have amounted to a breach of the peace. It was a private communication and could not have provoked a serious disturbance of the public peace (Smith v Donnelly (supra); Harris v HM Advocate (supra); HM Advocate v Harris (supra); cf Patterson v HM Advocate 2008 JC 327; Young v Heatly 1959 JC 99). The nature of the note was unlikely to have caused persons to take the law into their own hands. At most, the solicitor could have been expected to have reported the content of the note to the police. The note did not enter the public realm nor was it intended that it should do so. There was no finding in fact to that effect or concerning the possibility of disturbance. No alternative verdict of "uttering threats" should be substituted (Buchanan v Hamilton 1989 SCCR 398). The respondent had not suggested that at the trial and the threats had not been "grave".

[18] In the incident in the playground, it had been the complainer who had approached the appellant and initiated the conversation. The appellant had not even spoken to the appellant. He had, as the Sheriff had found, simply ignored her. The white line rule had not been made of cast iron. The appellant had not refused to withdraw. He had withdrawn once he had finished his conversation. His behaviour, judged objectively, could not have caused alarm to ordinary people or threatened serious disturbance to the community. No explanation had been given by the Sheriff for his use of the word "pretext" in the context of the appellant's behaviour. Even if the Sheriff had been correct in relation to the appellant's motive, the presence of a parent in a playground on a spring morning could not amount to a breach of the peace (cf Raffaeli v Heatly (supra)).

[19] The Advocate Depute argued that there had been two aspects to the charge and each element on its own amounted to a breach of the peace. The note had been sent using the public post and the solicitor was a member of the public. It was inevitable that he would pass on the terms of the letter to the complainer. It could be inferred that it would have been seen by others. It would thus enter the public domain. It was not essential that the conduct libelled required to amount to an unruly disturbance of the public peace. It was sufficient that alarm and annoyance were caused. Alternatively, a verdict of uttering threats could be substituted.

[20] If each event did not amount to a breach of the peace individually, they did when taken together. The conduct in the playground had been a deliberate act of provocation. It was reasonable to assume that the headmistress of a primary school would be in the vicinity of the playground at the start of the school day. There was a clear public element in the playground. The test of disturbance of the public peace was satisfied where it was established that the public had been seriously alarmed by what had occurred.

6. Decision

[21] The court has no difficulty in holding that the sending of a threatening letter to the headmistress of a primary school followed by an appearance by the sender at the door of that school at the start of the day, when parents, teachers (including the headmistress) and children could be expected to be present, is conduct which satisfies the dual test in Smith v Donnelly (supra) and thus amounts to a breach of the peace. It is important to note that the Crown, no doubt advisedly, did not ultimately libel two separate episodes of breaching the peace but one episode consisting of conduct over a period of time. The Sheriff was entitled, if not bound, to consider that conduct in the context of the charge as libelled. In this respect, the court does not consider that it is necessary, or desirable, to look at the two episodes separately and to decide whether one or other of them, taken in isolation, would amount to a breach of the peace. The appropriate course is to look at the two episodes together.

[22] Before doing that, it is worth making some comment on the problems which may arise on a SCCRC reference in a summary conviction case. The Sheriff drafted a stated case which provided some information on events in the Sheriff Court. However, a stated case is a limited form of appeal, wherein a Sheriff is asked to direct his or her mind to specific questions which an applicant wishes posed for consideration by the High Court. It is not a comprehensive report covering all issues raised at the trial diet. The application by this appellant was described by the Sheriff as presenting:

"in the same unfocussed, somewhat rambling, partially irrelevant and obsessive manner in which he conducted his own defence throughout" (Stated Case p 17).

Although there is some merit in that remark, it was possible for the Sheriff to filter out from the application at least some potentially relevant points of appeal. These related to the refusal to allow an adjournment, the admissibility of the interview, the allowance of a commission and (para (c) (supra)) what appears to be a complaint about lack of corroboration. The application did not raise directly any issue of whether the proved conduct could amount to a breach of the peace in terms of the dual test in Smith v Donnelly. Although, following upon the reference, the Note of Appeal did raise that issue, the court does not have the Sheriff's views on it as it would have had in a solemn appeal where the ground in the Note would normally have been remitted for comment.

[23] There is an additional problem. It is a fundamental part of the stated case procedure, which is not without its critics, that a Sheriff's findings in fact must be taken as conclusive unless they are challenged by a specific question directed to their validity. In the stated case here, for example, the Sheriff has found in fact that the appellant went to the school on a "pretext" (finding 20 (supra)); that is to say, the appellant's purported reason about speaking to the class teacher disguised his real purpose. This finding of fact was not challenged in the stated case and, accordingly, the Sheriff has not had his attention drawn to any criticism of that finding. Accordingly, only a limited explanation has been given by the Sheriff for his conclusion. Any comment about the lack of any "factual basis" for this finding in fact must be seen in that context. It may be, therefore, that where there is a SCCRC reference in a summary conviction case, which raises a different point of appeal from that originally tendered, the court should consider remitting that point to the Sheriff for a report.

[24] Returning to the merits of the appeal, the terms of the letter received by the complainer's solicitor on 6 February 2007 can reasonably be described as presenting a death threat by the appellant to M. That is the only meaning to be placed on the phrase that, if she did not tell what the appellant considered to be the truth, the letter and his voice would be the last things that she would see and hear before being cast into Hell. This threat was regarded seriously, as it indeed it was bound to be, by the solicitor who immediately contacted the complainer. She too regarded it as serious. Where the headmistress of a primary school is threatened with death by a parent of children at the school and a relative interim interdict has been obtained, it is reasonable to assume, as was indeed the case, that the background would be communicated to the members of staff at the school. Indeed, knowledge of such an unusual occurrence would be liable to be known to others, including parents.

[25] The Sheriff held that, having sent the letter and been interdicted from approaching the headmistress, the appellant went to the school playground on a "pretext". The court is unable to agree with the SCCRC that this finding can legitimately be criticised. The appellant would have known that it would be likely that the headmistress would be in the vicinity of the classroom door at the start of the school day. There was no legitimate reason for him to cross the white line and to approach the door. He could have communicated with the teacher by telephone or note. He did not do so and the Sheriff was entitled to conclude that the appellant's real motive in acting as he did was to intimidate and provoke the complainer (Stated Case p 16).

[26] The situation then was that a person, who was known to be interdicted from approaching a headmistress because of a previous death threat to her, was seen to walk across a line in the playground, beyond which parents were requested not to go, approach the door to the classrooms, where the headmistress might be expected to be, causing her fear and alarm. Using the dual test in Smith v Donnelly (supra), this was behaviour which, looked at objectively, would be genuinely alarming and disturbing, in its context, to any reasonable person observing the scene as well as to those directly involved. It would threaten serious disturbance to the community, notably that of the staff of the school and any parents in the vicinity who might have been aware of the background. In short, this is a case where the appellant threatened the headmistress of his children's school with death. He then deliberately approached her place of work, where she and other persons could be expected to be congregating, with a view to intimidating her. That conduct is archetypal of behaviour calculated to cause a public commotion.

[27] This appeal is accordingly refused.