APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD SUTHERLAND
JAMES ALEXANDER McGREGOR
PROCURATOR FISCAL, GLASGOW
Appellant: C. Shead; Drummond Miller
Respondent: F. Mulholland, A.D.; Crown Agent
25 May 1999
This is the appeal of James Alexander McGregor who was convicted on charges of breach of the peace and a contravention of section 52(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. The Crown conceded before the case came to this Court that there was insufficient evidence to justify conviction on the charge of breach of the peace and accordingly we shall quash that conviction.
The circumstances of the alleged offence under section 52(1) were that the complainer was a taxi driver. He went to pick up a fare who was in fact his ex-wife. The appellant, who had a relationship with the complainer's ex-wife, ran towards the taxi and thereafter the windscreen of the taxi was broken. The vital question, however, was in what circumstances did it come about that the windscreen was broken. The complainer maintained that his door was closed at all material times and that the appellant simply attacked the windscreen and broke it. The only other evidence in the case for the Crown came from a witness, Dickson, who agreed that the appellant ran towards the taxi, but then said that he saw the driver's door of the vehicle opening some 5 or 6 inches and he saw the appellant place his left hand inside the door at the top of the window. At that stage the taxi moved backwards with the appellant's hand apparently trapped inside the driver's door and it was at that stage that the appellant used his free hand to strike the windscreen of the vehicle.
It was pointed out to us that there was a joint minute lodged which contained medical evidence to the effect that the appellant sustained lacerations to the back of his left ring and middle finger and a mallet deformity of a joint of the left middle finger which would appear to support, to some extent, the evidence given by Mr Dickson.
The approach taken by the Crown before the Justice appears to have been that the vital question was whether or not the appellant's hand was trapped and that this was a matter of credibility and reliability. It was impliedly accepted by the procurator fiscal that had the appellant's hand been trapped this would have provided a reasonable excuse for his actions. That concession has been repeated before this Court by the Advocate Depute who accepts that the vital question is whether or not the appellant's hand was trapped and he accepted that if his hand was trapped then he had a reasonable excuse for acting in the way in which he did.
Unfortunately, despite the fact that this is the vital issue in the case, the Justice wholly fails to deal with it. He tells us that it was submitted to him that whether or not the appellant's hand was trapped was a matter of credibility and reliability, but then he does not deal in any way with the question as to which version he accepts.
In these circumstances we are entirely satisfied that the Justice has wholly failed to apply his mind to what was admittedly the vital issue and in these circumstances his decision simply cannot be upheld. It does appear, in the circumstances of this case, that there was fairly clear evidence from one of the two witnesses supported by medical evidence to the effect that the appellant's hand may well have been trapped and therefore it would be necessary for the Justice to explain why he considered that that did not constitute a reasonable excuse.
In the whole circumstances, therefore, we are satisfied that the Justice was not entitled to convict the appellant and we shall therefore answer the second question in the negative.