Scottish High Court of Justiciary Decisons

At advising on 14th July 1976 the opinion of the Court was delivered by the Lord Justice-General (Emslie).

OPINION OF THE COURT.—The appellant was convicted after trial on summary complaint upon a charge of breach of the peace. The particulars of the charge were that at a late hour at night, indeed in the early hours of the morning on 29th November, he discharged a shotgun into the air to the alarm of the lieges. The Sheriff, as we have indicated, convicted and the question in the case is whether on the facts stated he was entitled so to do. Mr Booker-Milburn has argued that it is perfectly plain from the case that the gun was fired in the air to try to stop a breach of the peace which was being committed by a number of unsavoury and drunken youths in the vicinity. The findings show that the appellant had been caused trouble before by youths who had damaged his property and that in course of the breach of the peace some of the drunken youths were shouting abusive expressions in the direction of his premises. The proposition was that an act which is committed to stop breach of the peace ought not to be regarded itself as a breach of the peace. While the proposition is attractive, however, we regret to say that we cannot give effect to it in law. Undoubtedly a gun was fired in the air in an urban situation in the early hours of the morning. Undoubtedly certain lieges, however undesirable they might have been, were put in a state of fear and alarm. But more importantly, the act of firing a gun in the air in an urban situation at that time in the morning was calculated to be likely to put lieges in general in a state of fear and alarm. In these circumstances the fact that the appellant's motive was the sound one of trying to stop a breach of the peace is irrelevant. The fact that the only persons put in a state of fear and alarm were those committing the breach of the peace is equally irrelevant. A man may not take the law into his own hands. Furthermore a man may not commit an offence in an attempt to stop another. In the event, as the case shows, what the appellant did, did not end the fracas outside his premises, and it might be thought to have aggravated an already unsatisfactory situation. In the whole matter, while we have considerable sympathy for the appellant, we have no alternative but to answer the question in the case in the affirmative.