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Cite as: 2005 SCCR 267, [2005] HCJAC 24, 2005 1 JC 279, 2005 SLT 707, 2005 GWD 22-394, [2005] ScotHC HCJAC_24

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Quinan v. Procurator Fiscal [2005] ScotHC HCJAC_24 (16 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lady Paton

Lord Clarke

[2005HCJAC24]

Appeal No: XJ1282/03

OPINION OF THE COURT

delivered by LORD HAMILTON

STATED CASE

APPEAL AGAINST CONVICTION

LLOYD JOHN QUINAN

Appellant;

against

PROCURATOR FISCAL, Dumbarton

Respondent:

_______

Appellant: J. Scott, Solicitor Advocate; Gilfedder McInnes

Respondent: Murphy, Q.C., A.D.; Crown Agent

16 March 2005

[1] The appellant was convicted after trial in Helensburgh District Court of having, on 11 February 2002, committed the offence of breach of the peace. He was acquitted of another charge of that offence alleged to have been committed on an earlier date. The particulars of the charge of which he was convicted were that at the A814 North Entrance, HMNB Clyde, Faslane he did conduct himself in a disorderly manner, sit on the roadway, obstruct the free flow of traffic and refuse to desist when required to do so.

[2] The Crown led, in respect of this charge, evidence from two witnesses, both police officers. Their evidence was to the effect that at about 7.30 a.m. on 11 February approximately 200 protesters were present in the vicinity of the North Entrance to Faslane Naval Base. About 20 or 30 of them moved onto the roadway leading to the North Entrance and sat on that road. That had the effect of completely blocking the public road for vehicular traffic travelling to and from the North Entrance. Various cars and vans were stationary on the road as a result of that blockage. The appellant was one of the persons sitting on the road. He had linked arms with others so sitting. These protesters, including the appellant, were required by a senior police officer using a loudhailer to move off the road and were warned that, if they failed to do so, they would be arrested for breach of the peace. That warning was not heeded by them. The appellant was then approached by the two police witnesses and requested to move from the road, failing which he would be arrested for breach of the peace. The appellant shook his head, indicating that he was refusing to move. He was then arrested and subsequently charged.

[3] One of the witnesses in the course of cross-examination confirmed that he had recognised the appellant as a Member of the Scottish Parliament. No other evidence was elicited, either from that witness or otherwise, in relation to any capacity in which the appellant was taking part in the protest.

[4] At the end of the Crown case the solicitor for the appellant submitted on various grounds that the appellant had no case to answer. That submission was rejected. The appellant did not himself give evidence nor was any evidence led on his behalf. Having heard parties on the evidence, the justice acquitted the appellant of the other charge but convicted him, as libelled, of the charge with which this appeal is concerned. The appellant was fined £100.

[5] At an earlier diet the parties had been heard on a minute by which the appellant had given intimation that he intended to raise a devolution issue within the meaning of Schedule 6 to the Scotland Act 1998. That minute included contentions that the proceedings against the appellant were incompatible with Articles 10 and 11 of the European Convention on Human Rights. At that diet, after hearing argument, the justice "refused to find that a devolution issue existed". He also refused leave to appeal against that finding. The case accordingly proceeded to trial with the outcome narrated above.

[6] The questions of law posed in this Stated Case are as follows:

"1. Was I correct in concluding that there was no Devolution issue disclosed by the Minute lodged on behalf of the Appellant?

2. Was I correct in repelling the Submission of no case to answer in terms of Section 160 of the Criminal Procedure Act 1995?

3. On the facts stated was I entitled to convict the Appellant?".

[7] Before us it was agreed by parties that the justice's determination at the earlier diet, which was to the effect that no devolution issue arose in the proceedings, was in error. An arguable issue under the Convention clearly arose, although it could not properly be determined until evidence had been led. The appropriate course would have been to adjourn determination of that issue until the trial. In the event the Convention issues were explored at the trial and, to some extent, remain live in this appeal. However, in order to rectify the procedural position, we shall, of consent, answer question 1 in the negative.

[8] As regards the substance of the appeal, matters have moved on legally since this case was last before the justice. In particular in Jones v. Carnegie and associated cases 2004 SCCR 361 a court of five judges authoritatively reviewed the law of Scotland in relation to the offence of breach of the peace in the context of various Articles, including Articles 10 and 11, of the Convention. In one of the associated cases, Barrett v. Carnegie, the circumstances were, subject to one possible specialty to which we shall return, indistinguishable from those of the present appeal. Further, in Clark v. Kelly 2003 S.C.C.R. 194 the Privy Council made certain suggestions as to the practice when justices seek and obtain legal advice from their clerks in relation to proceedings before them; in Chalmers v. Procurator Fiscal, Perth (30 November 2004, unreported) this court made certain further observations on that practice. The result of these legal developments is that several matters raised for review in the Stated Case are no longer live.

[9] In the event, Mr. Scott for the appellant confined his submissions to one matter, namely, the effect of the appellant being, as at February 2002, a Member of the Scottish Parliament. He submitted, under reference to Article 10 and to Castells v. Spain (1992) 14 EHRR 445, that, in the context of a protest by an elected representative, interference by criminal sanction could be justified only if such interference was necessary in a democratic society. Protest by action, as well as by words, was protected under Article 10 (Lucas v. United Kingdom, (2003) 37 E.H.R.R. C.D. 86). The appellant's protest had been peaceful. The criminal proceedings brought against him were not proportionate to the legitimate aims listed in the second paragraph of Article 10.

[10] The Advocate depute in response submitted that the matter of the appellant's representative status had not been raised before the lower court in any meaningful way. The only evidence was that he had been recognised by one of the police officers as being a Member of the Scottish Parliament. The capacity in which he had been acting at the material time had not been explored. For that reason alone there was no basis in the evidence for treating his case any differently from those of other protesters who had blocked the road and, when asked, refused to move. In any event, the true distinction was between those who made their protest within the law and those who, like the appellant, chose to act beyond it. Castells v. Spain, which was concerned with freedom of verbal expression, was distinguishable. The law of Scotland conferred certain immunities upon Members of the Scottish Parliament (Scotland Act 1998, section 41) but it was not disproportionate to the legitimate aims set out in Article 10 that, in respect of protests such as the present, a Member of the Scottish Parliament should be subject to the same law as an ordinary citizen. Moreover, the activity against which the protest had been mounted (the continuation of a nuclear submarine facility at Faslane) was a reserved matter under Schedule 5 to the Scotland Act 1998, in respect of which a Member of the Scottish Parliament could have no interest in a representative capacity.

[11] Article 10 of the Convention provides:

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. 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 ... for the prevention of disorder or crime, ... for the protection of the ... rights of others ... ".

[12] The arrest and detention of protesters can constitute interference with the right of freedom of expression. In order for interference to be justified under Article 10 it must -

"(i) be prescribed by law;

(ii) pursue one of the legitimate aims listed in the second paragraph of

[Article 10];

(iii) be necessary in a democratic society, that is, proportionate to the aim

pursued". (Lucas v. United Kingdom at page 90).

[13] Mr. Scott accepted, against the decision of this court in Jones v. Carnegie and associated cases (and in particular Barrett v. Carnegie) that the interference in the present case was prescribed by law and pursued one of the legitimate aims listed in the second paragraph of Article 10. He further accepted that, but for the appellant's status as a Member of the Scottish Parliament, the infringement also satisfied the final requirement, namely, that it "be necessary in a democratic society, that is, proportionate to the aim pursued".

[14] This appeal might have been decided against the appellant on the simple ground that, on the evidence led at the trial, there was no basis for any finding that the appellant was, at the material time, acting in a capacity which made it appropriate to deal with him differently from the remaining 20 or 30 protesters who had sat upon the road and refused to move. But it is, in our view, appropriate to address the wider issue.

[15] Freedom of expression is an important right guaranteed by the Convention. The expression may take the form of physical action as well as of words (Steel and Others v. United Kingdom (1998) 28 E.H.R.R. 603; Lucas v. United Kingdom). The significance of Castells is that it recognises that in some contexts conduct which infringes a domestic criminal law may be entitled to protection under Article 10. But it is important to bear in mind the circumstances in which in Castells the application to the European Court was successful.

[16] The applicant in that case was, in 1979, a senator elected to the Spanish Parliament on the list of a political grouping supporting independence for the Basque Country. In June of that year a magazine published an article signed by him in which it was alleged that many people had recently been murdered or attacked in the Basque Country, that those responsible remained unpunished and that various right-wing extremist organisations, which were named, had been involved in these crimes. The article concluded by attributing to the Government of the day responsibility for that situation. Criminal proceedings were instituted against the applicant under an article of the Spanish Criminal Code. A defence was presented that the article contained accurate information and that the matters reported could not be said to be insulting but constituted legitimate political criticism by a person acting in his capacity as an elected representative and in conformity with the obligations attaching thereto. The Spanish courts held that defence inadmissible. After trial the applicant was convicted and certain penalties imposed. At paragraph 42 of its judgment the European Court noted that, while freedom of expression is important for everyone, it is especially so for an elected representative of the people. It continued:

"He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition member of Parliament, like the applicant, call for the closest scrutiny on the part of the Court".

Emphasis was placed on the pre-eminent role of the press in a State governed by the rule of law and its function, subject to certain restraints, to impart information and ideas on political questions and on other matters of public interest (para. 43). The Court's decision that there had been a violation of Article 10 turned in the end on the view that the decision by the domestic courts, to the effect that evidence to prove the truth of the allegations made was inadmissible, amounted to an interference with the applicant's freedom of expression which was not necessary in a democratic society (para. 48).

[17] The significance of that case lies, in our view, in the necessity for a court to scrutinise with particular care interferences with the freedom of expression of elected representatives when acting as such. That is because the exercise of that freedom by such a person acting in such a capacity may, in particular circumstances, be an aspect of the democratic process. Accordingly, the court must consider whether the bringing of criminal proceedings was, in the circumstances, necessary in a democratic society or, in other words, was proportionate to the aim pursued.

[18] In the present case the aim pursued was the prevention of disorder (and perhaps also the protection of the legitimate interests of other road users), the appellant's conduct constituting deliberate blocking of traffic on the public road, persisted in despite requests to move. The applicant was one of a group of some 20 or 30 persons who so acted. His behaviour and that of the other members of that group may be contrasted with that of the vast majority of the protesters present who were prepared to make their protests without such disruption. The appellant's conduct was clearly contrary to law and the actions taken against him (his arrest and subsequent prosecution) were in pursuit of a legitimate aim (Jones v. Carnegie and associated cases at paras. [34]-[36] and the European decisions therein referred to). These actions were also, in our view, proportionate - even on the basis that the appellant was, and conceived himself to be, acting in a representative rather than in a personal capacity at the material time. In the present context, where the democratic interest in freedom of expression by elected representatives can be met as readily by such a representative publicly demonstrating lawfully as unlawfully, we see no ground for holding that it is disproportionate to apply the law to him in the same way as to his fellow citizens.

[19] In these circumstances this appeal must be refused. Question 1 will, as we have said, be answered in the negative and questions 2 and 3 in the affirmative.