Scottish High Court of Justiciary Decisons

IAN TAYLOR BUTTERCASE v. PROCURATOR FISCAL, CUPAR [1999] ScotHC 105 (11th May, 1999)

This is the appeal of Ian Taylor Buttercase who was ordered to serve 240 hours of community service on a charge of breach of the peace. The circumstances were that two police officers were chasing a driver whom they suspected of being under the influence of drink. They reached the appellant's premises which is an isolated house. As they drove into the yard at the farm the driver of the car disappeared. The police officers started to search and at that stage the appellant emerged from the house carrying a shotgun. One of the police officers shouted that he was a police officer and said that everything that was all right, but he would speak to the appellant later. The appellant swore at the constable and thereafter raised the shotgun to an angle of about 45 degrees and fired over the head of the constable. Not surprisingly the constable was frightened and shocked at this, but went forward and took the gun from the appellant. It transpired that in fact the cartridge was a blank, but this of course was not known at the time to the police officer. The sheriff took the view that this was a very serious matter and that it was one which might well merit a custodial sentence. However as the appellant was of previous good character the sheriff was prepared to impose the alternative of community service and impose the maximum of 240 hours. Mr Sudjic on the appellant's behalf today has argued that the sentence was excessive and that either there should be a reduction in the number of hours of community service or the matter could be disposed of by way of a financial penalty. The appellant is 43 years of age and is a first offender. He had had trouble with people stealing from his outbuildings and was just protecting his own property. While this would obviously be a frightening experience for the police officers, the fact remains that it was a blank cartridge that was used and there was never in fact any danger to the officer. It was pointed out that not surprisingly the appellant's shotgun certificate has been revoked and it is most unlikely that he will obtain another one. He is self-employed as an agricultural contractor and works long hours. Accordingly a period of community service would eat into his leisure time, such as there is, to a considerable extent.

In our view this was a case where the sheriff would be entitled to consider the possibility of a custodial sentence, bearing in mind that it cannot be permitted for people with shotguns to use them in circumstances such as the present, even if only firing blank cartridges. Having said that, however, it is clear that as far as the appellant was concerned, he had no malicious intent towards the police officers and there is no doubt that the cartridge was in fact a blank. In the circumstances while we consider that a community service order was entirely appropriate, we are satisfied that to impose the maximum is perhaps excessive in view of the circumstances of the appellant. He was a first offender. There is no likelihood of a repetition of this offence and because of the nature of his work he does have to work long hours and therefore a community service order may have a greater impact on him than it might have on others. In the circumstances we consider that the appropriate sentence would be one of 120 hours community service which is what we shall substitute.

LIN