APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 972/98
OPINION OF THE COURT
delivered by LORD KIRKWOOD
DANIEL JAMES BIGGINS
PROCURATOR FISCAL, Dunfermline
Appellant: Scott; Martin Johnston Socha
Respondent: Cathcart A.D.; Crown Agent
4 June 1999
The appellant in this appeal against conviction by stated case is Daniel James Biggins who was convicted at Dunfermline Sheriff Court of breach of the peace, the offence having been committed when he was on bail. The charge against the appellant, who was 36 years of age, narrated that on 6 August 1997 on Leighton Street, High Valleyfield, District of Dunfermline, Fife, he conducted himself in a disorderly manner, repeatedly invited Kimberley Bell, aged 13 years, to accompany him into his flat, attempted to induce her to accompany him to said flat by offering her money, placed her in a state of fear and alarm and committed a breach of the peace.
The sheriff has set out the evidence which was led by the Crown. On 6 August 1997 Kim Bell, who was 13 years of age, was playing hide and seek in the street with her friends Lindsay Bell and Yvonne Neilson when the appellant shouted down from his window "Do you want to come up to ma bit?". The complainer, who assumed that the invitation was meant for her, replied "No. I'm waiting on my mum". She was upset at the unexpected invitation which had also been heard by Yvonne Neilson. Five minutes later, when the complainer and her friends were playing hide and seek some 25 yards further down the street, the appellant came down and walked to and fro next to them. The complainer gave evidence that the appellant, who had singled her out, spoke to her alone and said "Would you come up to ma bit. You know what I mean? I'll give you money". No other witness heard what the appellant said to the complainer on this occasion. The complainer was terrified as she suspected that the appellant's intention was to engage in sexual activity with her. Yvonne Neilson spoke to the fact that she had seen the appellant talking to the complainer, who appeared to have been singled out by him, and that the complainer was upset and that she had tears in her eyes. The complainer told Yvonne that the appellant had said to her "Come up, I'll give you money, you ken what its for" or words to that effect and she had stuttered as she repeated what he had said and would not go home on her own. Lindsay Bell, aged 14, had been in the group and she said that the complainer had been "awfully scared" and was crying after speaking to the appellant.
At the conclusion of the Crown evidence the appellant's solicitor made a submission of no case to answer in terms of section 160(1) of the Criminal Procedure (Scotland) Act 1995 but that submission was rejected by the sheriff. No evidence was led on behalf of the appellant. The sheriff accepted the evidence of the complainer and the other Crown witnesses and found the appellant guilty as libelled and he was fined £200.
Counsel for the appellant submitted that there had not been sufficient evidence to entitle the sheriff to convict the appellant. In particular, the Crown had not proved that a breach of the peace had been committed. At the outset it was important to note that what was alleged to constitute a breach of the peace was what the appellant had said, not any aggressive or abusive conduct on his part. Counsel accepted that there was corroboration of the appellant's initial invitation to the complainer to come up to his flat but submitted that that invitation on its own had not been capable of constituting a breach of the peace. Counsel referred to Reynolds v. Normand 1992 S.C.C.R. 859 and Donaldson v. Vannet 1998 S.C.C.R. 422. On the basis that such an invitation had been made, the fact that the complainer was upset by it could not turn what the appellant had said into a breach of the peace. The gravamen of the Crown case was that the appellant was alleged to have invited the complainer to his flat on two occasions, within a few minutes of each other. However, there was no corroboration of the fact that the second invitation had been made as no one had heard what the appellant had said to the complainer. The evidence that the appellant had been seen speaking to her and that she was distressed afterwards was not capable of providing corroboration of what he had actually said to her. All that the distress showed was that something distressing to her had taken place. There was certainly no corroboration of her evidence that he had offered her money to induce her to go to his flat and such corroboration was essential to the Crown case. In the circumstances the Crown had not proved that the appellant had repeatedly invited the complainer to go to his flat. Even if it was established that the appellant had repeated the invitation to come up to his flat, the two invitations taken together would not have been capable of constituting a breach of the peace. If there had been proof of threats or violent conduct the position might have been different. On the evidence all that the Crown could found upon in this case was the appellant's invitation to the complainer which was made from the window of his flat and was corroborated but that could not, in law, constitute a breach of the peace as it could not reasonably have been expected to cause fear or alarm.
In reply, the advocate depute submitted that, applying the test set out in Raffaelli v. Heatly 1949 JC 101 (at page 104), the action of the appellant in shouting down to a 13-year-old girl in the street an invitation to come up to his flat was in itself capable of constituting a breach of the peace in that such conduct was likely to lead to the girl being alarmed or upset, and there was evidence that the invitation had, in fact, upset the complainer. The complainer gave evidence of the second invitation which the appellant had made to her in the street and in that connection it was important to note that it had taken place only a few minutes after the first invitation, so that the two invitations taken together could be regarded as one course of conduct. The advocate depute accepted that, if the complainer's evidence about what the appellant had said to her in the street was taken on its own, the evidence of the complainer's distress could not corroborate her account of what the appellant had said to her. But her evidence that, when the appellant spoke to her in the street, he had repeated his invitation to go up to his flat could be sufficiently corroborated by her distress taken along with the evidence that the appellant had extended the same invitation to her a few minutes earlier and that she had been upset by it. There was thus corroborated evidence of the two invitations made a few minutes apart, and these two invitations, taken together, were clearly capable of constituting a breach of the peace. In these circumstances, on the authority of Yates v. H.M. Advocate 1972 S.L.T. (Notes) 42, the complainer's evidence that the appellant had offered her money did not require to be corroborated. The sheriff had been entitled to find the appellant guilty as libelled.
In our opinion the submissions made by the advocate depute were well-founded. It was common ground that there was corroborated evidence of the invitation which the appellant made to the complainer when he shouted down from the window of his flat and she was playing in the street. At that time he invited the complainer, who was 13 years of age, to come up to his flat and there was evidence that she was upset by the unexpected invitation. The complainer also spoke to a second invitation to his flat which the appellant made to her when she was playing further down the street only minutes later. No-one else heard what the appellant said to her on the second occasion but there was supporting evidence that he had been seen speaking to her, after having apparently singled her out, and that when she left the appellant she was in a distressed condition. Counsel for the appellant submitted that there was no corroboration of the second invitation but in our opinion the complainer's evidence that the appellant had again invited her up to his flat a few minutes after the first invitation had been made was corroborated by the evidence that the earlier invitation had been made and her distress after the appellant had spoken to her in the street. The sheriff accepted the evidence of the complainer and the other witnesses led by the Crown and in our opinion the conduct of the appellant in twice, within the space of a few minutes, inviting a 13-year-old girl playing in the street to come up to his nearby flat was conduct which might reasonably be expected to lead to the complainer being alarmed or upset and constituted a breach of the peace. In the circumstances we do not require to deal with the advocate depute's submission that the appellant's first invitation to the complainer, taken on its own, could have constituted a breach of the peace. We are further of the opinion that in the circumstances of this case the complainer's evidence that the appellant, when he spoke to her on the second occasion, offered her money did not require to be corroborated (Yates v. H.M. Advocate, supra). On the whole matter we are satisfied that the sheriff was entitled to find the appellant guilty as libelled. We shall answer questions 1, 2, 3 and 4 in the affirmative and refuse the appeal.