Scottish High Court of Justiciary Decisons

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Cite as: [2002] ScotHC 334

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Cameron of Lochbroom

Lord Hamilton

Lord Reed

Appeal No: 2809/00

OPINION OF LORD HAMILTON

STATED CASE

in the cause

BRUCE WILLIAM SCOTT HAMILTON

Appellant;

against

PROCURATOR FISCAL, Glasgow

Respondent:

_______

Appellant: Wheatley, solicitor advocate; Hughes Dowdall

Respondent: D. MacKenzie, A.D.; Crown Agent

20 December 2002

The appellant along with others went to trial in the sheriff court at Glasgow on summary complaint. The complaint contained a number of charges. One of these was a charge against the appellant and another, James Burns. This charge libelled that on 13 May 1999 in Gartocher Terrace, Springboig, Glasgow, each did conduct himself "in a disorderly manner, block said roadway, refuse to allow persons and in particular William Combe....to pass through said roadway, fail to desist in said action when required to do so by police officers and commit a breach of the peace".

At the conclusion of the evidence led for the Crown, a submission of no case to answer was made on the appellant's behalf. The sheriff rejected the submission. The sheriff thereafter heard evidence from James Burns and two witnesses who gave evidence on his behalf and spoke to events on 13 May 1999. At the conclusion of the evidence the sheriff acquitted James Burns on the basis that he was not satisfied that the actions of James Burns amounted to a breach of the peace in law. However he convicted the appellant as libelled and thereafter deferred sentence for a period of six months in view of the minor nature of the charge, ordering the appellant to be of good behaviour in the meantime. No question is posed in the stated case directed specifically to whether the sheriff was entitled to reject the no case to answer submission. However, the matters which in his application for a stated case the appellant stated he desired to bring under review included whether the sheriff had erred in law in repelling the no case to answer submission. Questions sufficient to put the relevant matter in issue are included in the stated case.

In his note appended to the stated case the sheriff narrates that the charges in the complaint related to activity in Gartocher Terrace directed against Mr. Combe, who was the owner of a house at the further end of the street, for the purpose of preventing him from bringing lorries into the street and thus potentially affecting the amenity of those residing in the street. From the findings in fact it appears that Gartocher Terrace is a private road accessed from a main road at one end only and that the owners of the houses in the street, all of which border the street on one side only, own the roadway up to the halfway line. The remaining part of the roadway was owned by Railtrack plc. It is found in fact that the roadway is in common and everyday usage with unrestricted access over many years to anybody wishing to enter the road on foot or by vehicle from the main road. Ordinarily there is no restriction, obstruction or difficulty for vehicular traffic coming from the main road into Gartocher Terrace and any member of the public wishing to drive into it can do so easily and without causing nuisance to the owners or occupiers of the houses in Gartocher Terrace. Also accessed via Gartocher Terrace is an area of waste ground, a cemetery and a social club all of which are regularly visited by members of the public without any restriction being placed on them either currently or historically by the owners of the properties on Gartocher Terrace. The whole roadway is wide enough to admit the passage of two vehicles abreast.

The findings in fact also record that Mr. Combe inherited his house at No. 14 Gartocher Terrace some two years before May 1999. In the early days of his ownership there was no difficulty about access to his property and he regularly took vehicles, both cars and lorries, to his property without difficulty over the roadway of Gartocher Terrace which is and has always been the only access to the house. Mr. Combe runs a business elsewhere in Lanarkshire as a waste disposal contractor. It appears that fears existed locally and particularly among the residents of Gartocher Terrace that he might attempt to use the ground surrounding his house for purposes connected with his business. Mr. Combe had no such plans and his solicitors had written to every resident in the street to confirm that there was no such intention.

Finding in fact 9 is in the following terms:

"9. From about mid-April 1999 for a period of several months (sic) Mr. Combe was repeatedly blocked, harried and obstructed on occasions when he attempted to drive in Gartochar Terrace as were other members of his company, in particular his company consultant Miss Dorothy Paterson. The problems were such that from 5 May 1999 onwards Miss Paterson began to keep a full written log of the incidents many of which involved residents and children of residents in Gartochar Terrace, obstruction by objects and vehicles and vandalism in the area around No. 14. All of these incidents, including the present one on 13 May 1999 involving the appellant caused Mr. Combe, and others, annoyance and upset."

This finding in fact was subject to criticism by Mr. Wheatley for the appellant. In doing so he drew attention to the statement in the sheriff's note regarding the evidence led in relation to the case against the appellant. There the sheriff records that he heard evidence from three police officers concerning the actions of the appellant which evidence he found to be credible and further that evidence as to the background circumstances and the ongoing dispute was given by Mr. Combe and Miss Paterson "though neither gave evidence about the detail of this specific incident and neither gave evidence directly implicating the appellant". Mr. Wheatley submitted that, if that was the extent of their evidence, it did not justify a finding that on the particular occasion on 13 May 1999 they or either of them was annoyed or upset. He pointed out that the sheriff had been invited, but had refused, to add a question to the effect that he was not entitled to make this finding in fact since neither Mr. Combe nor Miss Paterson gave any evidence in relation to the incident on 13 May 1999 nor in relation to the appellant. This submission is discussed later in this opinion.

The sheriff goes on to find that on 13 May 1999 a further protest or demonstration was arranged by residents unknown in the morning and at about 7.00 am residents of the street set up a line of 'wheelie' bins across the street at the point where it forms a T-junction with the main road. There were some other visible signs of a protest in the form of slogans and banners either on the obstruction caused by the bins or on hedges or fences adjoining. The line of bins completely blocked access to Gartocher Terrace and no vehicle could pass through without knocking them over or striking individuals who were standing at or near the bins. Mr. Combe found the obstruction when he attempted to drive into the street to gain access to his house with his own motor vehicle and a skip lorry. He called the police. At approximately 7.15 a.m. a number of police officers arrived. At that time a group of approximately eight persons were manning the barricade formed by the line of bins. The appellant was then in the middle of the group at a point on the roadway near to its centre. He was aware of earlier police involvement on previous days. This involvement is recorded in reference to an incident involving access to the street for vehicles belonging to Mr. Combe, that occurred on 7 May 1999 when two of the residents were arrested. In addition, there were further incidents on the mornings of 11 and 12 May 1999 when access to the street was denied by the erection of barriers across the entrance. On each day the police were called to deal with a complaint from Mr. Combe in relation to access being denied to him. On both days the obstruction was removed at the request of the police and Mr. Combe received access to his property.

After the police arrived on 13 May 1999 the appellant was spoken to initially by a police constable. He asked the group of persons including the appellant to move off the roadway. They all refused. The constable called for senior officers to attend. A police inspector, who was in charge of the operation, arrived in response to this call. A discussion took place between the police, the appellant and the others present as to Mr. Combe's rights of access to Gartocher Terrace. The police inspector asked the group as a whole to move off the road. He did so in clear terms "having regard to earlier involvement". Some of the group left at that stage and some moved the 'wheelie' bins which formed the obstruction. Two persons remained after this warning and after the others had left. One of these was the appellant. He remained in the middle of the road. He was spoken to personally by the police inspector and the instruction to move off the roadway and allow passage was repeated in clear terms. The appellant said "They are not coming through". This was a reference to Mr Combe and members of his company who were waiting on the main road with the skip lorry. The police inspector then gave instruction to apprehend the appellant.

Findings in fact 21 and 22 are in the following terms:

"21. At the point when the appellant was arrested a number of persons were in the immediate vicinity and one person remained on the roadway. Feelings were running high and those present were aware that Mr. Combe had called the police and was waiting on the main road to gain entry to the street. None of them were willing for him to be allowed to do this and there existed high potential for further upset, alarm and disorder among bystanders and onlookers having regard to the fact that the incident involving the appellant was taking place in the context of an ongoing dispute concerning Mr. Combe's access to the street, and the fact that previous incidents similar (sic) had been occurring regularly in the days prior to this.

22. The actings of the appellant in creating a deliberate obstruction to the entry into the street of William Combe followed by his refusal to move in spite of repeated requests from officers of law and his stated intention not to allow access all amounted to the commission of a breach of the peace at common law."

In his note the sheriff tells us that he had viewed the conduct of the appellant in the light of the overall circumstances, the number of persons present and their state of mind, and that he had also had regard to the position of the police who had to take action in order to attempt to deal with the situation where the road was blocked and a resident of the street who appeared to have good reason for entering the road was being denied access. The action decided upon by the police officers was that the obstruction on the roadway should be moved and the actions of the appellant in attempting to frustrate them in that, taken along with his stated intent to continue to do so, was conduct which was performed in breach of good public order and decorum and conduct which might reasonably be expected to lead to upset or to the taking of reprisals on the part of others. The sheriff continues as follows:

"(The appellant's) refusal to allow entry to the street in respect of Mr. Combe had already led to upset on his part and I took the view that the police were entirely within their rights, powers and responsibilities when they attempted to clear the roadway by consent initially and thereafter when they arrested the appellant following upon his stated refusal to move. This was an entirely proper and reasonable course for the police to adopt and I was satisfied that refusal to comply in all the existing circumstances including the state of mind of others present at this demonstration of resistance fulfilled the conditions for the test for common law breach of the peace set out primarily in Rafaelli v. Heatley 1949 JC 101 and followed in subsequent cases."

Mr. Wheatley's general submission began from the decision of this court in Smith v. Donnelly 2001 SCCR 800. He pointed out that in that case, after a review of the relevant case law, the court expressed the view (in para. 17) that what is required to constitute the crime of breach of the peace is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. The court had gone on to indicate that if the opinions in the leading cases are read as a whole, it was sufficiently clear that something substantially greater than mere irritation was involved. Rather what is required is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person. He also referred to the passage in para. 20 where the court, in commenting on some recurrent themes, said:

"...there have been repeated instances in which refusal to co-operate with police or other officials has led to a charge of breach of the peace; but such a refusal, even if forcefully or even truculently stated, is not likely to be sufficient in itself to justify conviction."

Mr Wheatley went on to submit that in the present case there was nothing to suggest that there had been that degree of alarm or annoyance as would suffice to substantiate a conviction for breach of the peace in the terms libelled in the present case. The incident took place on a private road. It was a peaceful protest although its object was to prevent others coming onto property which was owned by the residents. When the police officers arrived, the barrier was withdrawn when the police requested that it be removed. Up to that point there could not be any warrant for holding that such conduct had constituted a breach of the peace. It did not threaten serious disturbance to the community. In what followed, as set out in the findings in fact, there was nothing of conduct on the part of the appellant which either by gesture or by words was severe enough to cause alarm to a reasonable person. Nor was there any suggestion of public disorder arising from that conduct. Consequently the conduct was not at a level which made it appropriate to be regarded as a breach of the peace. The sheriff had therefore erred in holding that the facts demonstrated that in law a breach of the peace had been committed by the appellant.

In reply the advocate depute submitted that the combination of the appellant's conduct towards the police and the presence of others as set out in the findings in fact suggested conduct on the part of the appellant which was capable of causing alarm and annoyance to bystanders and onlookers. As he put it, the appellant's failure to obtemper the request by the police was inflammatory in the circumstances and such as to entitle the sheriff to find that a breach of the peace had been committed.

As narrated above the sheriff in finding in fact 9, after referring to earlier incidents involving Mr. Combe and Miss Paterson, continues:

"All of these incidents, including the present one on 13 May 1999 involving the appellant caused Mr. Combe, and others, annoyance and upset".

In the course of adjustment of the stated case the appellant's agents proposed certain questions for inclusion in it. These included the question:

"Was I entitled to make finding in fact No. 9 on the basis that neither Mr. Combe nor Miss Paterson gave any evidence in relation to 13 May 1999 nor in relation to the appellant?"

This matter had also been raised in the application for a stated case. The sheriff, while not deleting the finding questioned, did not include the proposed question in the case as stated by him. He gave no reasons for his refusal of the proposed adjustment, as required by section 179(7)(a) of the Criminal Procedure (Scotland) Act 1995. However in his Note he narrates that:

"Evidence as to the background circumstances and the ongoing dispute was given by Mr. McCombe (sic) and Miss Paterson though neither of them gave evidence about the detail of this specific incident and neither gave evidence directly implicating the appellant".

This appears to amount to an acknowledgement by the sheriff that, in so far at least as concerned events on 13 May and in particular the appellant's conduct on that day, there was no evidence of actual upset on the part of either Mr. Combe or Miss Paterson. I proceed on that basis.

There are no findings of fact that any other persons were actually upset by the appellant's conduct. The issue is accordingly narrowed to whether the appellant's conduct prior to his arrest was such as might reasonably be expected to lead to others being alarmed or upset or tempted to make reprisals at their own hand. It is difficult to find in this case any evidential basis on which such a conclusion could properly be based. Although there was undoubtedly a background of earlier incidents, there is nothing in the findings of fact in this case to suggest that these were other than peaceful protests, albeit involving, to a greater or lesser degree, obstruction of free access along the street. While these earlier incidents were no doubt a source of irritation to those adversely affected, there is nothing to suggest that they, or any of them, had given rise to violence or any serious disturbance on the part of either those who obstructed access or of those whose access was obstructed. Nor does there appear to be any basis on which it could properly be concluded that these earlier incidents had caused "upset, alarm and disorder among bystanders and onlookers". The sheriff's finding that "there existed high potential for further upset, alarm and disorder among bystanders and onlookers" (emphasis added) seems unsupported by the evidence. We note that in the course of adjustment of the stated case the appellant's agents proposed the following question for inclusion:

"Was I entitled to make finding in fact Number 21 on the basis that no evidence was led in relation to anyone being upset by the Appellant's conduct and that any upset by bystanders and onlookers was caused by Mr. Combe being allowed access to the street after the Appellant's arrest?"

The sheriff rejected that proposed adjustment but, again, has given no reasons for doing so. There appears to have been nothing in the particular circumstances of the appellant's conduct which made it, against the relative background, likely to be a catalyst for any serious disturbance (whether from a supportive or a retaliatory source) such as to constitute a breach of the peace. No doubt, it might on one view be thought to be indecorous to refuse to co-operate with a police officer. But, as is made plain in Smith v. Donnelly at para. [20], such refusal is not likely, as the law is presently understood, to be sufficient in itself to justify a conviction for breach of the peace. The circumstances of this case in substance amount to no more than that. It is unnecessary to discuss whether the appellant's conduct was otherwise criminal.

The questions posed for the opinion of this court are:

"(1) On the facts stated was I entitled to convict the appellant of a

breach of the peace?

(2) Was I correct in holding that the conduct of the appellant on the

day in question amounted in law to a breach of the peace?

(3) Was I correct in holding that the precise ownership situation in

relation to various properties and the consideration of the legal rights of access which were at issue here, were not relevant in deciding whether or not the crime of breach of the peace had been committed at the end of Gartocher Terrace?"

In the circumstances I propose that we answer the first two questions in the negative and the third question in the affirmative.