APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 407/00
OPINION OF THE COURT
delivered by LORD COULSFIELD
NOTE OF APPEAL
PROCURATOR FISCAL, Dumbarton
Appellant: Shead; More & Co.
Respondent: Murphy, A.D.; Crown Agent
28 September 2001 The appellant was charged by the respondent on a complaint in the following terms:
"On 15 February 1999 on the A814, North Gate entrance to H.M. Naval Base, Clyde, District of Argyll and Bute, you Pamela Smith did conduct yourself in a disorderly manner, lie down on the roadway, disrupt the free flow of traffic, refuse to desist when requested to do so and commit a breach of the peace."
"That devolution and the Scotland Act mean that Scots law must be aligned with the European Convention for the Protection of Human Rights with effect from 23 May 1999; that under the European Convention for the Protection of Human Rights there cannot be a charge which does not clearly define what the limits of acceptable behaviour are, and that the charge of breach of the peace is an all-encompassing charge which has been used to cover any type of behaviour deemed inappropriate in various circumstances and is therefore too vague to be aligned with the European Convention for the Protection of Human Rights."
"I was satisfied that breach of the peace is the common law charge which has been used in Scots law for several hundred years. I did not accept that breach of the peace was a new crime to the law of Scotland which only emanated since the alleged actions of the accused on 15 February 1999. I therefore decided breach of the peace was not a retrospective charge and therefore did not contravene Article 7 of the European Convention of Human Rights."
"I decided that anyone acting in the same manner as the appellant has allegedly done could disrupt national security, since I am told the Base can hold Trident nuclear weapons. Also the alleged actions of the appellant in lying on the road to protest could put public safety at risk in respect of not only the drivers on the road but also the persons protesting lying on the road. The rights and freedoms of others would also be contravened by people lying on the road preventing them from having freedom of movement. I therefore concluded that the charge of breach of the peace did not contravene Article 10 of the European Convention on Human Rights, as it was allowed under Article 10 paragraph 2."
"1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations."
"34. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or in other public emergency. It should be construed and applied, as follows from its object and purpose in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment.
35. Accordingly, as the court held in its Kokkinakis v. Greece judgment of 25 May 1993 (Series A No. 260-A page 22 section 52), Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimem nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy. From these principles, it follows that an offence must be clearly defined in the law. In its aforementioned judgment the court added that this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable. The court thus indicated that when speaking of "law" Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability...
36. However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law making is a well entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen."
"54. The court recalls that the expression 'lawful' and 'in accordance with a procedure prescribed by law' in Article 5(1) stipulate not only full compliance with the procedural and substantive rules of national law, but also that any deprivation of liberty be consistent with the purpose of Article 5 and not arbitrary. In addition, given the importance of personal liberty, it is essential that the applicable national law meets the standard of 'lawfulness' set by the Convention, which requires that all law, whether written or unwritten, be sufficiently precise to allow the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
55. In this connection, the court observes that the concept of breach of the peace has been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is committed only when an individual causes harm, or appears likely to cause harm, to persons or property or acts in a manner the natural consequence of which would be to provoke others to violence. It is also clear that a person may be arrested for causing a breach of the peace or where it is reasonably apprehended that he or she is likely to cause a breach of the peace. Accordingly, the court considers that the relevant legal rules provided sufficient guidance and were formulated with the degree of precision required by the Convention."
These passages explain the test which requires to be applied in considering whether the crime of breach of the peace, as known in Scotland, is sufficiently well defined to meet the requirements of lawfulness. The definition of that crime in Scotland is, of course, different from that in England. Both counsel for the appellant and the advocate depute took the case of Raffaeli v. Heatley supra as the starting point for consideration of the modern law of breach of the peace. There is, however, in our view, something to be gained by looking first at the earlier decision in Ferguson v. Carnochan 1889 16 R. (J.) 93 which was a prosecution of a man who had used loud language and oaths and imprecations in a street in a Burgh early on a Sunday morning. In the course of his opinion Lord Justice Clerk Macdonald said:
"Breach of the peace consists in such acts as will reasonably produce alarm in the minds of the lieges, not necessarily alarm in the sense of personal fear, but alarm lest if what is going on is allowed to continue it will lead to the breaking up of the social peace. The words 'to the alarm of the lieges' in a charge of breach of the peace mean that what is alleged was likely to alarm ordinary people and if continued might cause serious disturbance to the community."
"The clearest case of breach of the peace consists in engaging in hostilities either in the street or in a private ground, for I agree that it makes no difference whether the offence be committed in a public or private place, provided the lieges be alarmed. But breach of the peace is not confined to acts of this description. Breach of the peace means breach of public order and decorum. All accompanied always by the qualification that it is to the alarm and annoyance of the public. Articulate noises and cries not calculated to be offensive to anyone have been held not to amount to breach of the peace. On the other hand, where the brawling is of such a kind as to be offensive and alarming, it is not necessary that those who hear it should be alarmed for themselves. It is enough that offensive language should be uttered in a noising and clamorous manner so as to cause reasonable apprehension in the minds of those who hear it that some mischief may result to the public peace."
"It is usual to charge this offence as a breach of the peace, because it is a species of disorderly conduct; where something is done in breach of public order or decorum which might reasonably be expected to lead to the lieges being alarmed or upset or tempted to make reprisals at their own hand, the circumstances are such as to amount to breach of the peace."
"It follows therefore that it is not essential for the constitution of this crime that witnesses should be produced who speak to being alarmed or annoyed. At the same time, however, I consider that a very special case requires to be made out by the prosecution if a conviction for breach of the peace is to follow in the absence of such evidence of alarm or annoyance. For then the nature of the conduct giving rise to the offence must be so flagrant as to entitle the court to draw the necessary inference from the conduct itself."