Scottish High Court of Justiciary Decisons

HENRY LEO FRIEL v. PROCURATOR FISCAL, GREENOCK [1999] ScotHC 179 (7th July, 1999)

This is an appeal by way of Stated Case. The appellant is Henry Leo Friel. He appeared before the sheriff in Greenock on a charge that on a date in August 1998 at premises in Greenock he conducted himself in a disorderly manner, issued a threat of violence and committed a breach of the peace. After hearing evidence, the sheriff rejected a motion made under section 160 of the 1995 Act and having heard further evidence found the appellant guilty as libelled and imposed a fine. There is no appeal against the sentence. In the application for the stated case the appellant submits several grounds. The first is that there was insufficient evidence at the conclusion of the Crown case for the Court to hold that the accused had committed the offence libelled. It is unfortunate, therefore, that the sheriff did not follow the course which in Wingate v McGlennan 1991 SCCR 133 this Court has indicated is required and give a clear statement of the evidence. However, Mr Crawley who appeared for the appellant, having discussed this matter with the Advocate Depute made it clear that he considered that the case could properly be considered by this Court on the basis of the material which is to be found in the stated case. We therefore proceed upon that basis.

Mr Crawley submitted that the salient point related to certain remarks alleged to have been made by the appellant on the occasion of the alleged offence, namely,. the words contained in the complaint "issue a threat of violence". The background to the matter appears from the stated case under the heading of facts admitted or proved. The appellant was the director of a company owning property in Greenock. A meeting had been arranged between the appellant on the one hand and officials of Inverclyde Council on the other hand in relation to the use of that property. In the course of the discussions which took place with these officials present, the appellant raised the question of another site owned by his company and which had been the subject of planning enforcement action by Inverclyde Council. As matters progressed the appellant became increasingly agitated and he said certain things. From the sheriff's findings in fact and note it is clear that the sources of evidence in relation to what was said were principally the witnesses, Mr Phillips and Mr Mulholland, the two officials from Inverclyde Council. Any evidence to a different effect appears to have been rejected by the sheriff. The sheriff narrates that after the appellant accused Mr Phillips of giving certain advice adverse to the appellant's interests in relation to the other site which his company owned, the appellant became increasingly agitated. The sheriff narrates that the appellant accused Mr Phillips of hurting his family, and told Mr Phillips that he knew where he lived and that he would come to his house and harm him and his family. From the findings it is clear that Mr Phillips understood that the threat was to harm him and his family and that it was a physical threat. He and Mr Mulholland immediately left the site and after discussing the matters they reported it to the Director of Planning and a formal complaint was made to the police. It is accepted by Mr Crawley and it is clear to us that the evidence of Mr Phillips was evidence to support the allegation that there was a threat of violence of a kind such that uttering it would be likely to constitute a breach of the peace. The real criticism then in relation to the matter of sufficiency relates to what was said in evidence by Mr Mulholland. The sheriff first of all records that it was not stated by Mr Mulholland in evidence that the accused stated he knew where Mr Phillips lived and would come to Mr Phillips' house. Accordingly there was no direct support there for the precise words that Mr Phillips spoke to. The sheriff goes on to narrate, however, Mr Mulholland's words, and he puts them in quotation marks, "Mr Friel, that is the appellant, stated that his family had been hurt by Mr Phillips and he would hurt Mr Phillips' family and would serve a writ on Mr Phillips at his house". In further explanation of Mr Mulholland's evidence, the sheriff narrates that Mr Mulholland in fact interpreted the statement which he had heard as one about harming Mr Phillips and his family and he interpreted it as a physical threat; the appellant was then very angry and speaking with a raised voice. Mr Crawley drew our attention to the fact that the reference in finding in fact 9 to the threat to hurt Mr Phillips' family had to be looked at in the light of a further finding, no.10, which was that Mr Phillips himself had understood that the appellant's complaints about the alleged actings of Mr Phillips concerning the other site related to financial damage being done to the appellant or his family. Accordingly the use of the word "family" in finding in fact 9 was not necessarily indicative of a physical threat. He also drew attention to the note which the sheriff appended to his findings in fact which deals very specifically with the submission made to him that the evidence of Mr Mulholland did not provide the necessar

In the light of that and against the background of the angry demeanour and behaviour of the appellant, it is our view that the sheriff was entitled to determine as a matter of fact that there was sufficient corroboration from Mr Mulholland for the allegation of a physical threat which depended principally upon the evidence of Mr Phillips. In these circumstances we consider that the sheriff was correct to reject the submission made under section 160.

Mr Crawley also suggested that this could not properly be treated as a breach of the peace. It was, he suggested, just a circumstance in which an angry man uttered ill-chosen, ill-judged words but quickly clarified them by referring to the fact that what he really meant to do was to come to Mr Phillips' house and serve a writ there; and given the brevity of the gap between the alleged threat and this qualification of it and having regard to the totality of events, this was not properly to be regarded as a breach of the peace. In our view, however, having determined that there was a physical threat made, the sheriff was perfectly entitled in all the circumstances to hold that the breach of the peace libelled had been committed. For these reasons, the appeal will be refused. The stated case does not contain any question of the kind appropriate in such a case on the basis of the guidance given in Wingate v McGlennan, Question 1 begins, wholly incorrectly, with the words "On the facts stated ...". We shall answer question 2 in the affirmative.

LIN