APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
PROCURATOR FISCAL, EDINBURGH
Appellant: Jack; Wilson McLeod
Respondent: Menzies, Q.C., A.D.; Crown Agent
10 June 1999
This is the appeal of Johnny Glancy who was convicted on a charge of breach of the peace. The charge libelled that he and a co-accused, in a shop while acting along with others, conducted themselves in a disorderly manner, adopt a threatening and menacing attitude, repeatedly move items around the shop, throw items about the shop, refuse to leave the shop when repeatedly asked to, intimidate staff there, close and secure the shutters in such a manner as to prevent staff from opening said shutters and commit a breach of the peace.
The circumstances of the offence were that the complainer Meyer was a self-employed pharmacist who had a shop assistant, Samantha Carris. In the afternoon a group of five youths, including the appellant, entered the shop. Some members of the group had been banned from the shop on an earlier occasion. They were immediately asked to leave and they did not. None of the group approached the counter as if to purchase anything. They were talking to each other and split up. They moved throughout the shop picking up items from the shelves and moving them around, as the sheriff finds as a fact, although, as we shall see later, there was no evidence that they moved them any distance at all. Meyer repeatedly asked the group to leave the shop but they did not do so. Three of the group suddenly ran out of the shop and pulled down the shutters, trapping the other two members of the group and the two complainers inside. There was no other exit. The sheriff finds that Meyer was alarmed by the conduct of the group as soon as they arrived in the shop and he immediately asked them to leave and instructed his assistant to call the police. He felt threatened and frightened by the number in the group and their attitude. As far as the shop assistant, Miss Carris, was concerned, she said that she herself would not have considered calling the police on the basis of what she had witnessed. She said it was not their behaviour which bothered her but their lively and cheeky attitude and their refusal to leave. She said that Mr Meyer seem quite shook up and she felt nervous with so many of them.
Mr Jack, on the appellant's behalf today, has submitted that while the sheriff talks frequently of the group doing various things, there is no satisfactory evidence to establish that the appellant was associated with the group in doing the things alleged which constituted the breach of the peace. He accepted that the appellant was charged with doing these things while acting along with others, and that while it may be that the group as a whole acted in such a way as to constitute a breach of the peace, there still had to be evidence to show that the appellant was an active part of that group, either encouraging the group or participating in their activities, and he submitted that there was insufficient evidence of that.
The Advocate Depute accepted that as far as many parts of the charge were concerned there was probably insufficient evidence. He accepted that there was no evidence to show that items were moved around the shop, only that they were picked up and apparently replaced. There was no evidence at all that there was any throwing of items about the shop, and the Advocate Depute accepted that when it came to the matter of closing the shutters the appellant was not part of that activity because he was in fact left inside. Accordingly, the Advocate Depute said that he would be content with a finding of guilty only to the extent that the appellant conducted himself in a disorderly manner, adopted a threatening and menacing attitude and refused to leave the shop when repeatedly asked to, and intimidated staff there. He submitted that a mere refusal to leave the shop is itself could, in certain circumstances, constitute a breach of the peace. He referred to the case of Montgomery v McLeod 1977 S.L.T. (Notes) 77. In that case there was a disturbance at a car park where a crowd of young people were milling around. The police cleared the crowd except for the appellant, who said that he was waiting for someone and remained where he was. One of the police officers was afraid that the crowd might return, and following various warnings the appellant was arrested and charged with breach of the peace. The submission appears to have been that the conduct of the appellant was negative and that some positive content of conduct is required as a foundation of a charge of breach of the peace. The conviction was, however, upheld in the Appeal Court and what was said was that it is perfectly clear that if there is established conduct such as to excite reasonable apprehension that mischief may ensue, a breach of the peace has been made out. In that case there was a finding that the appellant's conduct was such as to excite reasonable apprehension that trouble might ensue, and the court said that in those circumstances, on the face of it, the sheriff was entitled to find a breach of the peace established. The court went on to say that there was no limit to the kind of conduct which may give rise to a breach of the peace, and that so long as the conduct was such as to excite the reasonable apprehension that there would be a mischief ensuing it did not matter whether the conduct was active or passive.
In our view the evidence in this case was undoubtedly thin, particularly in relation to the participation of the appellant as a part of the group. We consider that it is not unreasonable to say that there would be a breach of the peace if a group of youths enter a shop with apparently no intention of purchasing anything, move around the shop, lifting items, and refuse to leave when told to do so. This is particularly so of course if some members of the group had already been banned from the shop. The closing of the shutters would undoubtedly also assist towards contributing to a breach of the peace, but of course as we have indicated that was something with which the appellant was not concerned. As far as the apprehension of mischief is concerned, Meyer gave evidence that the attitude of the youths in ignoring his requests for them to leave frightened him and he felt threatened. He said that he felt intimidated. As far as Miss Carris was concerned, although she was not so much concerned with the general behaviour of the group, she felt nervous with so many of them about and she corroborated the fact that Mr Meyer seemed "shook up". The important matter here is that there is no doubt at all that the group were repeatedly asked to leave the shop as they appeared to have no proper business there. All members of the group, however, declined to accept this invitation and remained in the shop until the three ran out closing the shutters behind them. Accordingly, the case is to some extent similar to the case of Montgomery, where the conduct was of a passive nature. Refusing to depart when asked to do so and remaining where they were, the whole group could constitute a threat to the persons in the shop. There is no doubt that there was evidence that Mr Meyer was alarmed and Miss Carris was, at least, nervous to what might happen. If they were justified in coming to that belief, then that would be sufficient to warrant a conviction for breach of the peace.
We are therefore satisfied that although the evidence is thin, there is no doubt that the appellant did form part of the group, all of whom refused to leave and he was present throughout at the time when various activities were going on which could justify the complainers in being alarmed. In our view, therefore, there is sufficient to warrant a conviction for breach of the peace, but we shall restrict the finding of the sheriff of guilt to the charge in the complaint under deletion of the words "repeatedly move items around the shop, throw items about the shop, close and secure the shutters in such a manner as to prevent staff from opening said shutters". Subject to that deletion we shall refuse the appeal.