Scottish High Court of Justiciary Decisons

YVONNE ANGELA MITCHELL OR HARRIER v. PROCURATOR FISCAL, PERTH [1999] ScotHC 113 (12th May, 1999)

This is the appeal of Yvonne Harrier, who was convicted of a charge of breach of the peace, the nature of the breach being that she conducted herself in disorderly manner and made racial comments. There was evidence before the Justice from three witnesses, a mother and two children, that racist comments were made by the appellant in the shared back garden of the house. The incident was over in a few minutes and each witness spoke mainly to different parts of the events. The original defence approach was to suggest that because the complaint originally libelled that all the comments were directed at the mother, there was no corroboration of that. However, as the Justice correctly found, such comments were made in the presence or hearing of all three and it was not suggested to her at that time that the making of such comments could not constitute a breach of the peace. Mr Duguid on the appellant's behalf today, however, has argued that there was insufficient evidence before the Justice to entitle her to come to the view which she did, namely that a breach of the peace had occurred in the way in which the libel was restricted. The comments appear to have been made, apart from the evidence of one witness, in a normal tone of voice, rather than shouting and bawling which is the customary form of breaches of the peace. The comments which the Justice has founded on are "why don't you go back where you came from" and "no wonder this is why white people don't think much of black people" We note that one of the witnesses gave evidence that the appellant referred to "Paki bastards", but the Justice does not make any finding one way or the other to whether that was in fact said. Mr Duguid's submission was that while racist comments could well constitute a breach of the peace and be calculated to cause fear and alarm, in the circumstances these comments were such that they would not be so likely. Indeed, only one witness gave evidence to the effect that she was in any way concerned about the fact that these comments had been made. In that situation, Mr Duguid suggested that there was insufficient evidence to justify the Justice coming to the conclusion which she did. The Advocate Depute argued that the Justice had applied the correct objective test. It was important to note the context. In the present case there was a history, as the Justice has found, of bad feeling and complaints between the two families, and there was a hostility on this occasion arising out of a game being played by one of the appellant's children beside the complainer's washing which was hanging on the line. The appellant's own evidence was that she was angry and in this context, the Advocate Depute submitted, the Court was entitled to conclude that the conduct was calculated to cause fear and alarm.

All of these cases, of course, depend on their own facts and there is no doubt that the Justice applied the correct objective test in the present case. The only question is whether there was evidence to warrant her in coming to the conclusion which she did. In this sort of dispute, it is always difficult for this Court to judge the background and the atmosphere, whereas the Justice had the advantage of hearing all the evidence and of making her own assessment of the appellant and indeed, of the complainers. We are satisfied that while this case may not be one of the most abusive ones of its kind, there was material before the Justice which would entitle her in the context to come to the conclusion that it was conduct which was calculated to cause fear and alarm, and in these circumstances we must refuse this appeal by answering the questions in the affirmative.

AUD