Lord Hardie

Lord Brodie

Lord McEwan

Proposed final draft.

[2010] HCJAC INFO76

Appeal No: XJ136/10


delivered by LORD BRODIE











Appellant: Shead, Advocate; Capital Defence Lawyers

Respondent: Allan Q,C., A.D.; Crown Agent

23 July 2010

[1] The appellant went to trial in Perth Sheriff Court on a complaint libelling the following charge:

"On 11 June 2009 at Oakbank Crescent you did conduct yourself in a disorderly manner pass J born 10/09/1994, your newspaper delivery girl, a piece of paper with a message and your mobile phone number thereon, ask her to keep in touch with you, place her in a fear of state and alarm (sic) and commit a breach of the peace."

[2] At the conclusion of the evidence led by the Crown the solicitor acting for the appellant made a submission, in terms of Section 160 of the Criminal Procedure (Scotland) Act 1995, that there was no case to answer in respect of the charge on the complaint. The sheriff rejected the submission. The appellant then gave evidence on his own behalf. Thereafter, having regard to the whole of the evidence, the sheriff convicted the appellant.

[3] The appellant appeals his conviction by way of application for a stated case, in terms of Sections 175 and 176 of the 1995 Act. There are two questions appended to the stated case. They are in the following terms:

"1. Did I err in law in rejecting the submission of no case to answer?

2. On the facts found was I entitled to convict the appellant?"

However, in the absence of any question as to the entitlement of the sheriff to find in fact, as he had, that the conduct of the appellant was severe enough to cause alarm to ordinary people and threaten serious disturbance to the community, the argument advanced on behalf of the appellant concentrated on the first question appended to the stated case, it being the contention on behalf of the appellant that the sheriff should have upheld the submission made in terms of Section 160 of the 1995 Act.

Summary of Evidence led by the Crown

[4] J was 15 years old. She had worked in a shop in Perth on a part-time basis for about two days per week and she had done so for about two years. In June of 2009 she also did a paper round in some streets not far from her house. She was in fourth year at school. On 11 June 2009 she was working as a paper girl. She started work at 6.30am and began to deliver papers at about 6.45am and finished at 7.45am. One of the streets in which she delivered papers was Fairies Road in Perth. On a day prior to 11 11 June she delivered a paper to the appellant's house. When she did so the appellant was coming out of the house. He spoke to her and he introduced himself to her. J continued out of the driveway and was making her way towards the next house and as she did so the appellant had got into his car and driven a short distance and then stopped the car. J continued to walk towards the next house but the appellant spoke to her again saying that he had never had a chance to speak to her before. The witness did not reply and the appellant continued to speak to her by saying that his name was David and asked her name. J told him her name thinking that he was being friendly because she delivered his newspaper. He then drove off. She had not been troubled by the incident and did not tell anyone about it.

[5] On 11 June 2009 J was delivering papers again. At about 6.45am she was in Fairies Road. She saw the appellant again and spoke to him. She was unable to remember what the conversation was on that occasion. The appellant then got into his car as normal and apparently drove off. However when she was in Oakbank Crescent he stopped his car next to her and handed her a piece of paper. He said "I have a piece of paper for you" and handed it to her. He then said "We can keep in touch". She read the note and said "Okay". The note said "J here is my number keep in touch" and there was a mobile telephone number written on the paper. He then drove off.

[6] J did not know what to do about this. Such a thing had never happened to her before. She telephoned her mother because she was scared. She hoped that her mother would tell her what to do next. She did not immediately manage to contact her mother but telephoned again and then reported what had happened. Her mother told her to complete the newspaper round because she had only two or three houses left to do, and then to go straight home, which she did. Her mother said they would discuss what to do when she got there. When the witness did arrive home they telephoned J's supervisersupervisor. He came to her house and from there telephoned the police.

[7] At the relevant time the streets in the area of Oakbank Crescent were very quiet. There were few people about. Some motorists passed by. J accepted that the appellant did not say anything untoward to her such as swearing at her or making suggestive remarks.

[8] When she came to give evidence J's mother explained that her daughter was obviously worried but was not crying. J's mother was concerned why the appellant should have done what he did. She would not have expected a man to hand a teenage child his mobile telephone number. J's mother did not think of doing anything else herself and did not go to the daughter's location on the newspaper round, nor did she advise her daughter to come home immediately. She did not ask anybody to go and collect her daughter. She had other younger children in the house to look after.

[9] When interviewed by the police the appellant said that when he saw J's reaction to his giving her the note ("She said 'ooh'") his thought was that what he had done might have been a bit inappropriate. He had thought that he would apologise to her the next time he I saw her as the reaction had not been what he expected. He accepted that what he had done would appear inappropriate.

[10] Mr Shead, on behalf of the appellant, submitted that the sheriff should have upheld the submission of no case to answer. The conduct complained of amounted to no more than a private conversation between two individuals. It lacked the public element necessary to constitute breach of the peace: Harris v HMA 2010 S.C.C.R. 15, but in any event, even if he were wrong in his principal submission, the appellant's conduct did not constitute breach of the peace in that it did not meet the "conjunctive" test" set down in Smith v Donnelly 2001 S.C.C.R. 800 at para. 17. The conduct was neither severe enough to cause alarm to ordinary people nor such as to threaten serious disturbance to the community. Regard should be had to the origin of breach of the peace as in effect a lesser form of mobbing and rioting: Harris supra at para. 10.

[11] The Advocate depute accepted that it was appropriate to apply the conjunctive test taken from Smith v Donnelly. However, it was his submission that the sheriff had explained, with an adequate process of reasoning, why the offence of breach of the peace had been committed when regard was had to the evidence led for the Crown. The first question appended to the stated case should be answered in the negative. While it may be said that the precise nature of the communing between the appellant and J was private, the interaction in itself would have been such as to be liable to cause alarm. Children were told not to speak to strange men. Regard had to be had to the prospect of discovery, as was mentioned in Harris supra.

[12] The parties were agreed that the modern law of breach of the peace is to be found stated in Smith v Donnelly and Harris v HMA. The issue is whether the (essentially undisputed) evidence led by the Crown, taken at its highest, was sufficient to entitle the sheriff to find that the conduct of the appellant constituted a breach of the peace.

[13] In order for conduct to amount to breach of the peace it must have a public element. Agreeing with the sheriff, here we have no difficulty in concluding that the conduct did have a public element. It was an interaction between relative strangers, at the initiative of only one of them, which took place in a public street. It may be that what is said was not overheard by any third party and that what was done (the handing over of a piece of paper) would have appeared as an been entirely obscure act, even had it been observed. Nevertheless, what was said and done was said and done in public.

[14] However, not everything said and done in public amounts to breach of the peace, even if it might be said to be indecorous, inappropriate or irritating in nature. This appears from what Lord Coulsfield, giving the Opinion of the Court, said in Smith v Donnelly at paras. 17 and 18. Lord Coulsfield began:

"The crime of breach of the peace can be committed in a wide variety of circumstances, and in many cases, it is a relatively minor crime. It has therefore been said, more than once, that a comprehensive definition which would cover all possible circumstances is neither possible nor desirable ... However ... it is, in our view, clear that what is required to constitute the crime is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community."

Lord Coulsfield then acknowledged that phrases such as "breach of public order and decorum and to annoyance to the public" had been used in the authorities but he went on to explain that, while if words like "annoyance" or "upset" or "breach of decorum" are taken in isolation, they might be taken as applicable to conduct which was no more than inappropriate or irritating. He continued:

, "we think it sufficiently clear that something substantially greater than mere irritation is involved ... What is required, ... it seems to us, is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person ... the conduct must be 'flagrant' if it is to justify a conviction"."

[15] Here, there is nothing on the face of the interaction between the appellant and J, which, if it had been observed and overheard by a third party standing in the street, which was in any way alarming or disturbing. That, of itself, is not conclusive. Such a notional third party would not be apprised of all the information giving the interaction its context, including the fact that J and the appellant were effectively strangers one to the other, and, as Lord Coulsfield explained, conduct has to be seen in its context. Agreeing, as we see it, that with the approach of the sheriff, we regard it as necessary when applying the conjunctive test, to assume that the notional reasonable person should be taken as being aware of the whole circumstances. However, on that approach, and here we differ from the conclusion of the sheriff, we cannot see what the appellant did and said to be such as to cause alarm to ordinary people and threaten serious disturbance to the community (emphasis added). The appellant's behaviour remains unexplained and, frankly, puzzling. He himself described it as "inappropriate". It is not something that a prudent person who did not wish to excite suspicion would have done. However, not all such behaviour is made criminal by reference to the law of breach of the peace. We would answer the first question appended to the stated case in the negative affirmative and allow the appeal.

[16] Subsequent to argument in the present case there was advised the decision on Bowes v Procurator Fiscal, Aberdeen [2010] H.C.J.A.C. 55. The facts there had certain similarities to the facts here in that the appeal, by way of bill bill of ssuspensionuspension, was in respect of a finding of guilt of breach of the peace constituted by what had been said by a taxi driver to his 14 year old female passenger, when the two of them were alone together in his taxi. The bbill of ssuspension Suspension was refused. The Court had no difficulty in concluding that the conduct concerned was severe enough to be of the nature described in Smith v Donnelly as constituting a breach of the peace. The Opinion of the Court explained its conclusion as follows:

"What was involved was the conducting by the suspender of a completely inappropriate conversation about intimate sexual matters with a 14 year old schoolgirl, who was temporarily in his charge, he being the driver of the taxi which had been hired to convey her from school to the home. The nature of the suspender's remarks were such as to cause upset and distress to the complainer herself, as might reasonably have been expected. Furthermore, coming from a man much older than the complainer, in our view, it was the kind of conduct which may be seen as severe enough to cause alarm to ordinary people. In that connection, we consider that any ordinary person would be sufficiently indignant at such conduct and fearful of the intentions of the perpetrator."

We would respectfully agree with the conclusion of the Court in Bowes but would see there to be a distinction between the facts there and the facts in the present case. In Bowes what was said by the accused had an explicitly sexual content which is not evident here. While it is no doubt a matter of fact and degree, we are satisfied that whereas what occurred in Bowes amounted to a breach of the peace, what occurred in the present case did not.