Scottish High Court of Justiciary Decisons

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Cite as: 2004 JC 136, 2004 GWD 15-325, 2004 SLT 609, [2004] ScotHC 25, 2004 SCCR 361, [2001] HCJAC 122

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Jones & Ors v. Procurator Fiscal [2004] ScotHC 25 (04 May 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord MacLean

Lord Macfadyen

Lady Cosgrove

Lord Sutherland

Appeal Nos: XJ264/03

XJ266/02

XJ1102/03

XJ1101/03

XJ271/02

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEALS by STATED CASE

in the causes

(1) MARGARET CATHERINE JONES

Appellant;

against

PROCURATOR FISCAL, Dumbarton

Respondent;

(2) JANE TALLENTS

Appellant;

against

PROCURATOR FISCAL, Edinburgh

Respondent;

(3) GAYNOR BARRET

Appellant;

against

PROCURATOR FISCAL, Helensburgh

Respondent;

(4) FRANK JAMES CARBERRY

Appellant;

against

PROCURATOR FISCAL, Kilmarnock

Respondent;

and

(5) JOHN PARK

Appellant;

against

PROCURATOR FISCAL, Aberdeen

Respondent:

_______

Appellant (1): Jackson Q.C., McKenzie; McClure Collins

Appellant (2): Scott Q.C., Hood; McCourts

Appellant (3): Ogg, Solicitor Advocate; McCusker McElroy & Johnstone

Appellant (4): Shead, Meehan; Balfour & Manson

Appellant (5): Brown; George Mathers & Co

Respondent: Solicitor General; Crown Agent

4 May 2004

[1] In these appeals against conviction for breach of the peace a number of questions have been raised as to the correctness, or of the application, of the decision of the court in Smith v. Donnelly 2002 JC 65. Accordingly, the appeals have been heard by a court of five judges.

[2] In Smith v. Donnelly the court was concerned with an argument that the test for breach of the peace had been developed and expanded to the extent that it was meaningless and consequently incompatible with Article 7 of the European Convention on Human Rights. In rejecting that argument the court held that none of the later decisions had attempted to redefine or to modify the statements of the nature of the crime in Ferguson v. Carnochan (1889) 16 R. (J) 93; 2 White 278 or in the other decisions which had been cited. The court stated, by reference to Ferguson v. Carnochan that "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" (paragraph 17). The court considered that this interpretation was supported by the fact that, as Lord Justice General Clyde pointed out in Young v. Heatly 1959 J.C. 66 at page 70, if there is no evidence of actual alarm, the conduct must be "flagrant" if conviction is to be justified. The court added:

"'Flagrant' is a strong word and the use of that word points to a standard of conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances" (paragraph 18).

The court went on to observe, inter alia, that a recurrent theme in past decisions was that a robust approach had been taken to the use of bad language and to refusal to co-operate with the police, even if forcefully or even truculently stated (paragraph 20).

[3] The decision in Smith v. Donnelly was followed by the decision of the European Court of Human Rights on admissibility in Lucas v. United Kingdom No. 39013/02, on 15 March 2003. The court held that the definition of the crime of breach of the peace in Smith v. Donnelly was sufficiently precise to provide reasonable foreseeability of actions which might fall within its scope. The court noted that the test employed the standard of conduct which was genuinely alarming and disturbing to any reasonable person. In Lucas v. United Kingdom the accused was convicted of breach of the peace and fined £150. She participated in a peaceful demonstration at the naval base at Faslane. The police had told demonstrators to move and warned them that, if they failed to do so, they would be committing a breach of the peace. The accused had been warned personally by two police officers that she would be arrested if she did not move from the road. She refused to do so and was arrested. The justice by whom she was convicted considered that her actions caused traffic to be disrupted, that her actions were intended to cause such disruption and that she failed to desist when requested. He also found that her conduct in being part of a large protest intending to block the public road would be alarming or seriously disturbing to any reasonable person in the particular circumstances. Her conduct in disrupting the traffic could reasonably have been expected to cause any person who observed it, including car drivers, to be alarmed, upset or annoyed and provoke a disturbance.

The appeal of Margaret Catherine Jones
[4] She was convicted of breach of the peace and fined £120 on a charge which alleged that at the south approach road to a naval base at Helensburgh, while acting with others, she conducted herself in a disorderly manner, sat on the roadway while mechanically fastened to a wheelchair and refused to desist when required to do so. According to the findings made by the justice in this case, Ministry of Defence police officers found a number of persons locked together by mechanical means across the road and blocking the traffic. The appellant was sitting on the public road, mechanically linked to a wheelchair by means of a U-lock. She was part of the crowd of persons who were halting the flow of traffic. One of the police officers asked her to desist from her behaviour, and to remove herself from the roadway. She was warned that she would be arrested for breach of the peace if she refused to desist. When she did not do so she was arrested and charged with breach of the peace. It is not in dispute that, according to the evidence, the demonstration was peaceful and that the appellant was not hostile or threatening. The intention of the appellant and the other protesters was to block the base so as to prevent workers from entering or leaving it.

[5] For the appellant Mr. Jackson accepted that the justice had correctly applied the decision in Smith v. Donnelly. However, he submitted that the decisions in Smith v. Donnelly, Rafaelli v. Heatly 1949 JC 101 and Young v. Heatly had wrongly held that there did not require to be evidence that persons were actually alarmed by the conduct complained of. As a consequence the justice had had to decide whether, in the light of the evidence given by the police officers, the conduct of the appellant was hypothetically alarming.

[6] In support of his submissions Mr. Jackson founded on a passage in the Opinion of Lord M'Laren in Ferguson v. Carnochan, as reported in 2 White at pages 281-282. Dealing with persons engaging in hostilities, he observed that it made no difference whether the fight was in a public place or in a private place

"if the lieges are alarmed. The term peace is not used as the antithesis of war. Breach of the peace means a breach of public order and decorum, causing disturbance and alarm to members of the public".

Speaking of brawling and where offensive language was used he observed that

"it is not necessary that those who hear it should be alarmed for their personal safety. It is enough if the conduct of those who are found brawling and using the offensive language is such as to excite reasonable apprehension that mischief may ensue to the persons who are misconducting themselves, or to others".

Mr. Jackson pointed out that in Young v. Heatly, page 70, the Lord Justice General had quoted the latter passage but not the former in holding that, while normally there would be evidence of alarm on the part of third persons, such evidence was not essential.

[7] Mr. Jackson submitted that the true position was that the crime of breach of the peace was committed when - (i) there is disorderly conduct that breaches public order and decorum and if there is actual alarm and annoyance - if it is unreasonable for the public to be alarmed and annoyed, there cannot be said to have been a breach of the peace; or (ii) a person conducts himself in a noisy 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 - that is, to persons other than themselves.

[8] Mr. Jackson also pointed out that in a number of decisions such as Buist v. Linton (1865) 5 Irv. 210 and Banks v. McLennan (1876) 3 Coup. 359, it had been held that insulting, threatening or opprobrious language did not constitute breach of the peace. There was no suggestion in the present case that the justice had considered that "in its context" (the phrase used by the court in Smith v. Donnelly) the appellant's conduct had a quality of alarming and disturbing which it would not have had in other circumstances. If the law was as it was stated in Smith v. Donnelly and the earlier decisions which he criticised, a person would be unable to know that his conduct might be held to have been "genuinely alarming and disturbing" since that would depend on the view taken by the court.

[9] The crime of breach of the peace appears to have been regarded originally as a lesser form of mobbing and rioting. The subject received only brief mention in Hume's Commentaries I, 439, where the author referred to cases in which tumult occurred in such a place or was carried to such a length as to disturb and alarm the neighbourhood. As the common law developed thereafter, it became clear that it was recognised that the crime of breach of the peace covered not only the causing of an actual breach of the peace of a neighbourhood, but also conduct giving rise to apprehension that a breach of the peace might occur. It is in regard to the latter form of the crime that there was considerable development of the law, in the sense that it was applied in a wide variety of situations. All along the courts deliberately refrained from specifying or categorising the type of conduct which would qualify, on the view that it depended on the facts and circumstances of the individual case. The language employed by the court in Smith v. Donnelly was plainly intended to emphasise the serious nature of the conduct which would be required in order to justify a conviction. The submission for the appellant in the present case is that the court should have adopted, in effect, a subjective, rather than an objective, test of what was genuinely alarming and disturbing.

[10] We are not persuaded that the submission for the appellant is well-founded. It is not well-founded on authority. An unfortunate feature of the reporting of the decision in Ferguson v. Carnochan is that there are differences between the reports as to the terms of the Opinions delivered by the members of the court. This is particularly so in the case of Lord M'Laren. The Opinion of the Lord Justice Clerk (Macdonald) is the more consistent as between the two reports to which we have referred. In 2 White at page 281 he 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 such alarm as causes them to believe that what is being done causes, or will cause, real disturbance of the community, and the breaking up of the peace of the neighbourhood. And I do not doubt that sober and reasonably minded people might be seriously annoyed by a disturbance, such as is set forth in this case, being continued, and that it was a disturbance of the public peace".

In 16 R(J) he stated:

"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".

[11] Whichever of these passages is selected the description of the crime is governed by the phrase "will reasonably produce alarm in the minds of the lieges ... ". We should add that it may well be that it is not correct to regard Lord M'Laren as requiring that there should have been evidence that persons were actually alarmed by the conduct to which the charge related. He can be understood as referring to the need that the conduct should be serious enough to cause alarm and hence that he is essentially concerned with the nature of the conduct rather than evidence as to its actual effect. The decisions since Ferguson v Carnochan do not assist the appellant's submission to any extent, since, as Mr. Jackson frankly accepted, they recognise and proceed upon an objective approach to the conduct of the accused.

[12] Further we are not persuaded that the adoption of the objective approach, in which it would fall to the court to decide for itself, even where there was no evidence to this effect, whether the conduct complained of is genuinely alarming and disturbing, is unacceptable, having regard to Article 5 of the European Convention or otherwise. This aspect of Mr. Jackson's submission was, in effect, an attempt to re-argue the alleged breach of Article 5 which was rejected in both Smith v. Donnelly and Lucas v. United Kingdom. In the latter decision the European Court specifically noted that the test which was set out by the court in Smith v. Donnelly used the objective standard and was sufficiently precise to be consistent with the Article. At the same time we would draw attention to the remarks made by the court in Smith v. Donnelly in regard to cases in which the charge relates to actions done or words spoken in private (paragraph 20). There is a danger that, if the nature of the conduct complained of in such cases is considered in isolation, the answer to the question whether there was a breach of the peace might tend to be governed by whether the court regarded the conduct as disgusting or offensive. It is not necessary for this court to go so far as to cast doubt on the soundness of the actual result in Young v. Heatly. However, we would caution that where conduct complained of took place in private there requires to be evidence that there was a realistic risk of the conduct being discovered.

[13] We should add that if the crime of breach of the peace were to be limited to cases in which there was evidence of actual alarm or annoyance, whether given by the persons who were alarmed or annoyed or by others, this would represent an unfortunate and unjustifiable narrowing of the common law. The safeguard against any undue expansion of the law is provided by the need, which was emphasised by the court in Smith v. Donnelly, for the conduct to be genuinely alarming and disturbing to any reasonable person. Further we are not persuaded that the adoption of a subjective test would provide a satisfactory basis for applying the law. As we have already noted, Mr. Jackson accepted that, even if there were evidence of alarm, this would not be conclusive. Conversely it may be said with some force that the protection of a neighbourhood against breach of the peace should not be inhibited merely because a bystander displayed an over-stoical reaction to the conduct in question.

[14] For these reasons we consider that this appeal cannot succeed.

The appeal of Jane Tallents
[15] The appellant was convicted of breach of the peace. Sentence was deferred for nine months for her to be of good behaviour. According to the terms of the charge of which she was convicted, at the Scottish Parliament chambers in Edinburgh, while acting with others, she conducted herself in a disorderly manner, tied and bound herself to a railing, sang, fell to the ground and refused to walk whereby others required to lift and physically remove her from the premises. She was convicted of the charge under deletion of an allegation that she shouted. The sheriff found as a fact that she was accompanied by a group of companions who were intent on protesting about nuclear weapons. She and her companions stood in the gallery of the chambers and tied themselves to a railing, singing. Her companions chanted slogans. A banner was unfurled. This was during the business of the Parliament which included First Minister's questions. The presiding officer, who was irritated, ordered the adjournment of the Parliament and instructed that the gallery should be cleared. For this purpose gallery attendants were summoned and police officers attended. Members of the Parliament were seated within the chambers below. The appellant was warned about her behaviour. Her cable-tie to the railing was severed and she was removed bodily from the gallery. As she was being removed, she let herself fall to the ground. The protest lasted some 10-15 minutes, during which the proceedings of the Parliament were delayed. It is not in dispute that her conduct was intended to, and did, disrupt the proceedings of the Parliament.

[16] On behalf of the appellant Ms. Scott submitted in the first place that there was no breach of the peace, in respect that the appellant's conduct was not such as to cause alarm to ordinary people and threaten serious disturbance or give rise to any reasonable likelihood of this happening. There was no finding that there was any violence or struggle. It was a peaceful protest. Unlike Mr. Jackson, Ms. Scott accepted that there did not require to be evidence that persons were actually alarmed and annoyed. However, there had to be evidence from which an inference could reasonably be drawn of the likelihood of public disorder cf. Fisher v. Keane 1981 J.C. 50. Whether there was a real risk of things getting out of hand, and hence there being an outbreak of public disorder, called for the application of a high test. In the present case, the police were entitled to eject the appellant, in the exercise of their duty to forestall the occurrence of disorder. The appellant did not persist in the conduct complained of, but adopted a purely passive attitude. It was plainly not enough if her conduct caused persons to be irritated. Ms. Scott emphasised that, in the absence of actual alarm, the conduct had to be "flagrant", which created a real likelihood of serious disturbance (see McMillan v. Higson 2003 SCCR 125). Subjective alarm might well not be sufficient (see, for example, Donaldson v. Vannet 1998 S.L.T. 957).

[17] Ms. Scott submitted in the second place that there had been a breach of the appellant's rights under Articles 10 and 11 of the European Convention on Human Rights.

[18] Article 10(1) states that everyone has the right to freedom of expression, and that this right is to include freedom to hold opinions and to receive and impart information without interference by public authority. Article 10(2) states:

"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".

[19] Article 11(1) states that everyone has the right to freedom of peaceful assembly and to freedom of association with others. Article 11(2) states:

"No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State".

[20] Ms. Scott submitted that the prosecution and conviction of the appellant was in breach of the appellant's rights under Articles 10(1) and 11(1) and had not been shown to be justified by reference to Articles 10(2) and 11(2) respectively. Having regard to the terms of section 57(2) of the Scotland Act 1998 the prosecution of the appellant was therefore ultra vires.

[21] In developing this submission Ms. Scott referred to a passage in the judgment of the European Court of Human Rights in Vogt v. Germany (1996) 21 EHRR 205. In that case the applicant had complained that her dismissal as a teacher on account of her membership of the German Communist Party was in breach of Articles 10 and 11. Ms. Scott pointed out that at paragraph 61 the court had expressed the view that the reasons which had been put forward in justification of the interference with her right to freedom of expression were "not sufficient to establish convincingly that it was necessary in a democratic society to dismiss her". Ms. Scott also referred to the speech of Lord Bingham of Cornhill in R. v. Shayler [2003] 1 AC 247. At paragraph 23 he stated:

"'Necessary' has been strongly interpreted: it is not synonymous with 'indispensable', neither has it the flexibility of such expressions as 'admissible', 'ordinary', 'useful', 'reasonable' or 'desirable': Handyside v. United Kingdom (1976) 1 EHRR 737, 754, para. 48. One must consider whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authority to justify it are relevant and sufficient under Article 10(2): The Sunday Times v. United Kingdom (1979) 2 EHRR 245, 277-278, para. 62".

[22] In the present case Ms. Scott submitted that the need for the Parliament to proceed with the First Minister's questions was met by the removal of the appellant from the gallery. The demonstration had had nothing to do with the questions themselves.

[23] Ms. Scott went on to submit that, even if there was shown to have been a pressing social need, the interference with the appellant's rights had to be shown to be no more than was necessary. In this connection Ms. Scott referred to the speech of Lord Hope of Craighead in R. v. Shayler at paragraph 61, where he referred to the requirements of proportionality as follows:

"The first is whether the objective which is sought to be achieved - the pressing social need - is sufficiently important to justify limiting the fundamental right. The second is whether the means chosen to limit that right are rational, fair and not arbitrary. The third is whether the means used impair the right as minimally as is reasonably possible".

Ms. Scott also referred to the decision of the European Court of Human Rights in Steel v. United Kingdom (1998) 28 E.H.R.R. 603. In one of the cases with which that decision was concerned it was held that the arrest and detention of a person who had been distributing leaflets and displaying a banner at a conference in a protest against the sale of fighter helicopters was disproportionate to the aim of preventing disorder or protecting the rights of others (paragraph 110). Ms. Scott did not dispute that in the present case there was an element of disruption of the proceedings in the Parliament, and that the actions of the appellant were intended to cause such a disruption. However, it was not as serious as an obstruction of traffic (as in Lucas v. United Kingdom) or an attempt to obstruct a grouse shoot by walking in front of a raised shotgun (which was one of the other cases with which Steel v. United Kingdom was concerned).