Scottish High Court of Justiciary Decisons

McMillan v. Procurator Fiscal [2002] ScotHC 335 (20 December 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Lord Hamilton Lord Reed	Appeal No: 2810/00 OPINION OF LORD HAMILTON in STATED CASE in the cause ERIC OASTLER McMILLAN Appellant; against PROCURATOR FISCAL, Glasgow Respondent: _______

 

 

Appellant: Shead; Finlaysons

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

 

20 December 2002

1. The appellant along with others went to trial in the sheriff court in Glasgow on summary complaint. The appellant was charged that on 7 May 1999 in Gartocher Terrace, Springboig, Glasgow, he did conduct himself

"in a disorderly manner, block the roadway there, refuse to allow persons 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".

He was also charged with a contravention of the Road Vehicles (Construction and Use) Regulations on the basis of his obstruction of the roadway by use of a vehicle. However, at the conclusion of the evidence in the case the procurator fiscal depute did not seek a conviction on the statutory charge and the appellant was formally acquitted of that charge.

2. The sheriff was addressed on behalf of the appellant at the conclusion of the evidence led for the Crown on a no case to answer submission. He rejected the submission. Thereafter he heard evidence led from the appellant and his wife. After hearing submissions on the evidence, the sheriff convicted the appellant of the charge of breach of the peace and admonished him. 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 holding that the conduct of the appellant in all the circumstances amounted to a breach of the peace. Questions sufficient to put that matter in issue are included in the stated case.
3. From the findings in fact in the stated case it appears that the appellant was at the relevant time the part owner and joint occupier of a dwelling house at No. 12B Gartocher Terrace. A man named Mr. Combe was the owner of a house at the further end of the street. Gartocher Terrace is a private road accessed from a main road at one end only and 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. 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. On the built up side of the road is a pavement and an area of private garden in front of the houses at Nos. 8, 11A and 11B and 12B Gartocher Terrace.
4. 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.
5. Findings in fact 8 and following so far as material are in the following terms:

"8. 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 Gartocher 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 Gartocher Terrace, obstruction by objects and vehicles and vandalism in the area around No. 14. All of these incidents, including the one of 7 May 1999 involving the appellant, caused Mr. Combe annoyance and upset.

9. On 7 May 1999 at about 8.30 a.m. the appellant reversed his car from the drive-in at the front of his house at No. 12B Gartocher Terrace and deliberately parked it across the roadway, the front of the car facing his house and the back of the car being so far across the road that the passage of other vehicles was made awkward and depending on their size, involved them driving on to the grass verge in order to negotiate the obstruction.

10. The appellant then removed the keys from the vehicle, retained possession of them and sat in a deckchair on the pavement observing the situation created. Relatively soon thereafter he was joined in that situation by John McCann, the occupier and part-owner of No. 11B Gartocher Terrace.

11. At the point when the said vehicle was parked there by the appellant, he knew that the private motor car of said William Combe was at No. 14 and when Mr. Combe attempted to drive away from the property and out of the street, he was obstructed in so doing by the presence and position of the appellant's vehicle.

12. Mr. Combe could by careful manoeuvre have managed to take his vehicle past Mr. McMillan's although this may have involved driving on to the grass verge. He did not attempt to drive through the remaining gap.

13. Mr. Combe elected not to get involved in a verbal exchange with the appellant because of the history of previous incidents, and called for the police who arrived relatively quickly to deal with the situation. Police officers who arrived spoke to both parties and made the decision that the appropriate action was to clear the roadway in order inter alia to allow Mr. Combe to exit the street and to open access to all. The police officer in charge of the operation........noted the general situation, realised that there were other people apart from the appellant and Mr. McCann who were observing what was happening and realised that the obstruction in the roadway was deliberate and was directed at Mr. Combe.

14 The police officer asked the appellant three times to move the vehicle, separately asked him once for the car keys and when met with a refusal on each occasion informed him that he was under arrest and again asked him for the keys so that he (the police officer) could have the car moved.

15. At this point the appellant threw the car keys into his front garden where his wife was standing in an attempt to ensure that the police officers could not use them to move the vehicle.

16. The appellant was taken into custody and went with the police officers without either verbal or physical resistance from him...

17. At the point when the appellant was arrested, there were a number of other persons in the immediate vicinity observing what was going on, including his wife who was in an extremely agitated state, and was shouting at the police. The potential for further upset, alarm and disorder was considerable having regard to the fact that this incident involving the appellant was taking place in the context of an ongoing access dispute and previous incidents had been occurring in the days prior to this.

18. The whole actings of the appellant in his use of the vehicle to block the roadway to make exit from the property at No. 14 difficult for its owner, and his refusal thereafter to move it or allow the police to move it amounted to the commission of a breach of the peace at common law.

19. The actings of the police officers in this whole matter were reasonable and were within the lawful powers of police officer called by a citizen to deal with such a situation.".

6. For the appellant, Mr. Shead submitted that looking to the findings in fact it was clear that the concern of the residents, including the appellant, had been about the use of the private road by heavy vehicles. It was also clear that the roadway had only partially and not fully been blocked by the appellant's vehicle. There was no evidence to support the libel that the appellant had refused to allow persons to pass through the roadway. The protest was not by way of blocking the roadway, as was the case with another of the charges on the same complaint involving other accused. While he accepted that the appellant had acted quite deliberately, there was nothing to suggest that there had been any actual upset. At most, there had been potential for upset. It was noteworthy that Mr. Combe himself had not got himself involved. The conduct of the appellant did not constitute the kind of flagrant conduct which could amount to breach of the peace. Reference was made to the decision in Smith v. Donnelly 2001 SCCR 800. Mr. Shead also submitted that in its approach to what constituted breach of the peace, this court was bound to have regard to the provisions of the European Convention on Human Rights and, in particular, to Article 10. The measures taken against the appellant interfered with his right to freedom of expression. Reference was made to Steel and Others v. United Kingdom (1998) 28 EHRR 603. Where there had been, as here, a peaceful protest, arrest of the appellant could be seen as a response which was disproportionate to what was taking place by way of a peaceful protest. The sheriff had therefore erred in determining in the first place that the libel had been proved in relation to the obstruction that had been placed on the roadway by the appellant. In the second place, the arrest of the appellant which, on the findings in fact, was justified only on the basis that it gave rise to the potential for upset or disorder, constituted a measure which could not be seen as "prescribed by law". In these circumstances, the sheriff had not been entitled to proceed by reference to finding in fact 19.
7. In reply, the advocate depute submitted that the salient facts were that the appellant had acted deliberately in placing his car on the roadway and thereafter taking up a position on the pavement with a view to a confrontation with Mr. Combe. While there was no direct evidence of upset on the part of Mr. Combe, he had chosen to call the police. The appellant's actions when the police were called could only have been intended to have an effect upon those others who were looking on and reasonably gave rise to an apprehension of public disorder on the part of the police officers.
8. In his note appended to the stated case the sheriff records that he proceeded on the basis that it was not for him to decide on issues of conveyancing and proprietorial right but simply to decide whether or not the appellant had acted in a way which breached the criminal law, having regard to the fact that the piece of ground which he was obstructing was one which for many years had been in free and open use as a road for any member of the public wishing to use it and continued so to be for all except Mr. Combe or his employees. No criticism was directed to his proceeding in this manner. It is enough to say that he was fully entitled to do so.
9. In explaining in his note his conclusion that the appellant's actual conduct amounted to breach of the peace the sheriff refers to findings 14, 15 and 17 and continues -

"I used your Lordships' dicta in Butcher and Others v. Jessop 1989 S.C.C.R. 119 in coming to my view that the conduct proved amounted to actions performed in breach of good public order and decorum which may reasonably be expected to lead to upset in others. All of this satisfied the general test set out earlier in Raffaelli v. Heatly 1949 JC 101 and I found that breach of the peace was established in all the circumstances by the proven facts."

Some analysis of these facts is called for. It is clear from finding 14 that the appellant had taken deliberate steps to obstruct the passage of traffic along the road. He had refused to co-operate with the police in the removal of that obstruction. His throwing of the car keys, which occurred immediately following his arrest, appears to have been an aspect or development of that obstructive attitude.

10. Critical to the sheriff's conclusion is finding in fact 17. As regards actual upset, it is not clear to what extent, if at all, the agitated state of the appellant's wife was regarded by the sheriff as relevant to the appellant's conduct. Nor is it clear whether her extreme agitation preceded or was consequent upon the appellant's arrest. On any view there is nothing in the findings to suggest that the appellant's conduct, as distinct from the actual or apprehended conduct of the police, caused actual distress to the appellant's wife. Nor is there any suggestion in that finding that any other person (Mr. Combe, the constable or any of the bystanders) was actually upset or alarmed by the appellant's conduct.
11. In effect, accordingly, the conviction appears to have proceeded essentially on the basis of an inference of a potential for upset, alarm and disorder. The sheriff's references to Butcher and Others v. Jessop and to Raffaelli v. Heatly appear to confirm that understanding. The circumstances of these cases were, of course, very different from those of the present case. The first was concerned with the potential for reaction in a highly charged situation involving partisan football supporters, whose resort to serious disturbance, if not violence, was notorious. The second was concerned with the potential for relatives or neighbours taking into their own hands retribution against the appellant for socially unacceptable conduct.
12. In the present case neither in his findings of fact nor in his Note does the sheriff clearly identify the factual basis on which the inference is objectively drawn that the appellant's conduct on this day had the potential to lead to upset, alarm and disorder on the part of any person or class of person. It is not suggested the constable was, or was likely to be, upset or alarmed. Nor is it clear that there was a potential for upset, alarm or disorder on the part of observers in the immediate vicinity. In so far as they may have been neighbours and sympathetic to the appellant's conduct, there seems no basis for concluding that they were potentially upset or alarmed by it. Nor is there anything in the findings to suggest that the appellant's conduct, albeit obdurate, had the potential, even in the context of an ongoing dispute, to encourage or to incite the onlookers to take action at their own hand. None of the previous incidents, it seems, had given rise to disorder. (The sheriff accepted an adjustment to finding in fact 17, proposed on behalf of the appellant, to the effect of deleting reference to disorder in relation to these incidents). While the sheriff in the last sentence of finding 8 finds that all the incidents, including that of 7 May, caused Mr. Combe "annoyance and upset", he does not, so far as appears, rely on that aspect in relation to his conclusion that there was a relevant potential for upset, alarm and disorder. It would in any event be inappropriate to place critical weight on that finding: although the sheriff rejected a proposed adjustment to the draft stated case which would have deleted it, he failed to give any reasons for that rejection, as required by section 179(7)(a) of the Criminal Procedure (Scotland) Act 1995. No doubt Mr. Combe was irritated (and perhaps justifiably so) at the inconvenience caused to him and to his business by the actings of the appellant and others. But he appears to have dealt with the situation calmly and responsibly by avoiding confrontation with his neighbours and calling for the police. There is no basis for concluding that there was a potential for reaction on his part of the kind which is necessary for the purposes of breach of the peace, as presently understood.
13. The sheriff and the parties were disadvantaged in respect that this trial was heard and concluded before this court heard and determined Smith v. Donnelly. The ruling in that case, which concerned whether breach of the peace as understood in Scotland satisfied the certainty requirements of the Convention, gave certain guidance as to the parameters of that common law offence. While it is understood that what was there said may become the subject of consideration by a larger court, neither party before us invited deferral of consideration of this appeal or disapproval of anything that was said in Smith v. Donnelly. In these circumstances we must proceed on the basis that that guidance was well-founded. In paragraph 17 of its opinion the court in that case observed:

"[I]t is in our view clear that what is required to constitute the crime is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community...What is required, therefore, it seems to us, is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person."

In paragraph 20 of its opinion the court observed:-

"Secondly, 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 a conviction".

That observation appears applicable to the circumstances of this case.

14. In the circumstances of the present case although the appellant obstructed passage and persisted in such conduct, there is no basis in the evidence narrated by the sheriff for any reasonable inference that, if persisted in, a serious disturbance was likely to ensue. In these circumstances commission of the common law offence of breach of the peace was not established. It is unnecessary to discuss whether the appellant's conduct was on any other basis criminal.
15. 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 deciding that it was the conduct of the appellant

on the ground in question and not the precise ownership situation in relation to that piece of ground which was the relevant feature in deciding whether or not a crime had been committed on that ground?

(3) Was I correct in considering in relation to the charge of breach of

the peace the evidence relating to the moving, parking and refusal to remove the motor vehicle belonging to the appellant?

(4) Was I entitled in all the circumstances to make finding in fact 18?

(5) Was I entitled in all the circumstances to making finding in fact

19?"

For the above reasons I propose that we answer questions 1 and 4 in the negative. I propose that we answer questions 2 and 3 in the affirmative and find it unnecessary to answer question 5.

McMillan v. Procurator Fiscal [2002] ScotHC 335 (20 December 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Lord Hamilton Lord Reed	Appeal No: 2810/00 OPINION OF LORD REED in STATED CASE in the cause ERIC OASTLER McMILLAN Appellant; against PROCURATOR FISCAL, Glasgow Respondent: _______

 

 

Appellant: Shead; Finlaysons

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

20 December 2002

I agree with the Opinion of Lord Hamilton.