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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Nimmo Smith
Lord Philip
C.G.B. Nicholson, CBE, QC,
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[2006] HCJAC 72
Appeal Nos: XJ 264/06; XJ 265/06; XJ266/06; XJ
267/06
OPINION OF THE COURT
delivered by C.G.B. NICHOLSON, CBE, QC
in
APPEALS BY STATED CASE
in causa
CATHERINE DYER, PROCURATOR
FISCAL, Glasgow
Appellant;
against
(1) CATRIONA BRADY; (2) ROZ BULLEN; (3) SAMUEL JONES; and (4) OLIVER MUNRO
Respondents:
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Appellant: Mackenzie, A.D.; Crown Agent
Respondents: Shead,
Mitchell, for Respondents Nos. (1) and (3); McClure
Collins, Edinburgh: Shead, for Respondent No.
(2); McClure
Collins, Edinburgh:
Forbes, for Respondent No. (4); Harding & Co.
6 October 2006
Background
[1] The
four respondents were together charged, along with three other persons, in a
complaint which libelled that:
" ... on 07 July 2005 at the premises of Weir Engineering, 149
Newlands Road, and on Newlands Road, both in Glasgow you ... did conduct
yourselves in a disorderly manner, chain yourselves together, and obstruct the
roadway and the lawful passage of persons there, refuse to desist from carrying
out said acts when requested to do so, impede the efforts of police officers to
clear the roadway, inscribe signs or logos on said roadway and commit a breach
of the peace".
The complaint also states that the
second respondent, Roz Bullen,
committed the offence while on bail.
[2] The
complaint called for trial at Glasgow
Sheriff Court on 1 November 2005 when the four respondents,
together with one other accused, were present.
The trial proceeded on that day and on four subsequent days. On the third day of trial the co-accused,
Frances Mary Howe, failed to attend, and a warrant was granted for her arrest. The trial proceeded, however, in respect of
the four respondents. The Crown evidence
was concluded on the fifth day of the trial (19 December 2005), and at that stage motions
were made to the sheriff that there was no case to answer. The sheriff upheld those submissions, and
acquitted the respondents. It is against
that decision that the Crown has now taken the present appeal. The applications for Stated Cases set out the
matter which it is desired to bring under review as being in each case: "That
the learned Sheriff erred in law in upholding a No Case to Answer Submission in
terms of section 160 of the Criminal Procedure (Scotland) Act 1995, in
particular holding that the conduct of the respondent was not sufficiently
flagrant so as to amount to a Breach of the Peace".
The evidence for the Crown
[3] In
the introduction to his stated cases the sheriff has told us that, in a case
such as this where the appeal is against the upholding of a no case to answer
submission, he has followed the guidance given in Wingate v. McGlennan 1991 SCCR 133, and
has set out the evidence adduced on behalf of the Crown rather than making
findings-in-fact. That, of course, is
the correct approach. However, in the
present case the sheriff has sought to follow that guidance by, so far as we
can judge, setting out, witness by witness, the whole contents of his notebook
with no attempt being made to assemble the evidence by reference to particular
topics or chapters. In the result his
narration of the evidence runs to 30 pages.
Much of what is set out at length is merely repetitive of what was said
by earlier witnesses. There also appears
to have been evidence on matters which are not in fact of relevance for the
charge libelled against the respondents.
While not seeking to challenge in any way the guidance which was given
by this Court in Wingate, we have to say that, in our view, it will in
future be helpful if stated cases in appeals of this sort were to set out the
evidence in a more structured manner.
[4] Subject
to the foregoing, the evidence which was led before the sheriff appears to
amount to this. The first matter to be
noted is that the incident in question occurred during the time of the G8
summit meeting in Gleneagles. As is well
known, demonstrations of various sorts were anticipated, and indeed took place,
in several parts of Scotland at that
time. Consequently, police forces were
on a high level of alert, and reinforcements from English forces were available
to assist local Scottish forces.
[5] Against
the foregoing background all of the evidence at the trial came from police
officers, namely PC Mark Swain, Police Sergeant Robert Campbell, PC Wilson, and
Superintendent Newlands. It appears that
the last-named officer was in charge of the operation at the locus. The first witness, PC Swain arrived at the
locus at 6.45 am, and he
began his evidence by saying that at that time he had seen three males running
from his left in the direction of Weir Engineering's main gates. They all had large pieces of tubing on their
arms. He shouted three times for them to
get back, and then tried to knock the tubing from their arms with his baton. He does not appear to have identified any of
the three males, and this incident was not spoken to by any of the other
witnesses. The sheriff has described
this evidence as "bizarre", and it was not relied on
to any extent by the procurator fiscal who conducted the trial. At the appeal hearing the advocate depute
also confirmed that he did not seek to place any reliance on this evidence.
[6] In
relation to the matters giving rise to the present charge, the police officers
appear to have been at one to the following effect. From an early stage in the morning there were
six protestors on the roadway in front of an entrance to Weir Engineering. That entrance was part of the property of
Weir Engineering, and the protestors were at no time on Newlands
Road.
Three of the protestors were male, and three were female. One of the women, the respondent Roz Bullen, was in a wheelchair. On one side of her was the respondent,
Catriona Brady. She was lying on the
roadway, covered by a blanket, and she was shackled to the wheelchair by a D
shaped cycle lock. On the other side of Roz Bullen was the accused
Frances Howe who appeared to be linked to Roz Bullen by a chain and a drainage pipe. Of the three men, the respondent Samuel Jones
was half lying, half sitting, on the roadway while shackled through a drainage
pipe to another man. The respondent
Oliver Munro was sitting on the roadway on top of a newspaper, and was not
chained or shackled to anyone. As a
consequence of the presence of the protestors vehicular traffic to the premises
of Weir Engineering was diverted to another entrance. However, the protest did not cause any
obstruction to pedestrian traffic.
[7] While
seated in the roadway the respondents had two cardboard placards in front of
them. One displayed the words "Weir -
stealing oil around the world", and the other displayed the words "making a
killing". The respondent, Roz Bullen, also had some
leaflets in her possession at the time. They
were described in evidence as "activist" leaflets. One police officer gave evidence of having
seen the respondent, Oliver Munro, "scrapping" [sic] a ban-the-bomb logo on the
footway, but that evidence does not appear to have been corroborated by any of
the other officers; and the activity came to a stop when the officer in
question told the respondent, Munro, to desist.
There was no evidence that any of the other respondents was engaged in a
similar activity. All of the police
officers were unanimous in stating that at all times the demonstration was
completely peaceful; and there was no evidence of anyone else being disturbed,
alarmed, or annoyed by what was going on.
[8] At
about 9.45 am Superintendent Newlands instructed Inspector Boyle (who was not
called as a witness) to warn the protestors that refusal to leave the entrance
would amount to a breach of the peace, and that they would in that event be
arrested. In cross-examination
Superintendent Newlands explained that the conduct of the respondents became a
breach of the peace only after the foregoing warning had been given. At about 10 am a "cutting
team" of officers from the West Yorkshire police
arrived at the locus. They were from one
of the non-Scottish forces who, as explained earlier, were providing
reinforcements for their Scottish colleagues on the date in question. They separated the protestors who were then
arrested and removed. According to the
police officers who gave evidence, the protestors were peaceful and compliant
at all times, and offered no resistance when they were being arrested.
The sheriff's decision and
reasoning
[9] As
noted earlier, all of the respondents submitted, at the conclusion of the Crown
evidence, that there was no case to answer; and those submissions were upheld
by the sheriff. He describes the
incident as being "a very low key protest".
The leaflet in the possession of the respondent, Roz
Bullen, fell, in the sheriff's opinion, "within the
ambit of legitimate political protest". There
had been some re-routing of delivery vans and lorries,
but pedestrians had unimpeded access to the premises. In all the circumstances, the sheriff concluded
that this did not amount to "flagrant" conduct as described in Smith v. Donnelly 2001 SCCR
801. He also distinguished Jones v. Carnegie 2004 SCCR
801 on the basis that in that case the facts involved the blocking of a main
thoroughfare and, in one incident, seeking to blockade premises allowing
neither access nor egress. The sheriff
also states that he did not consider that the giving of an order to disperse,
which was then ignored, could of itself bring about a breach of the peace. He concludes by expressing the view that the
respondents were the recipients of very keen policing rather than the authors
themselves of disorderly conduct amounting to a breach of the peace.
The appeal submissions
[10] The submissions advanced by the advocate depute on behalf of
the Crown were relatively brief. He
began by reminding us that, where there is a submission of no case to answer,
the Crown evidence must be taken at its highest. He then went on to highlight the features in
the present case which, he said, were capable of leading to convictions for
breach of the peace. Those features were
that there had been a significant deployment of police resources to deal with
the protest. Vehicles seeking access to
the premises of Weir Engineering had had to be diverted to another entrance
some 300 yards away. The protestors had
had a deliberate intention to disrupt the flow of traffic through the entrance
which they were blocking. Reference was
made to Jones v. Carnegie, and in
particular to the cases of the first and third appellants in that case, both of
whom had been convicted of a breach of the peace in connection with protests
taking place on a roadway. Their actings had obstructed the roads in question, and their
appeals against conviction were refused.
The advocate depute submitted that a similar approach should be taken in
the present cases, and that the sheriff had, accordingly, been wrong to sustain
the submissions of no case to answer. The
advocate depute did, however, accept that in the present case there was no
evidence of actual alarm or disturbance attributable to the actings
of the respondents. He also dissociated
himself from the approach taken by Superintendent Newlands who, as we have
noted above, expressed the view that what the respondents were doing became a
breach of the peace only after they had been ordered to disperse and had failed
to comply with that order.
[11] In response Mr Shead began by
directing our attention to the terms of the charge libelled against the
respondents. He drew attention to the
fact that the charge specifies two loci where the breach of the peace is said
to have occurred, namely the premises of Weir Engineering and Newlands
Road.
But, as he correctly pointed out, the evidence related solely to the
entrance to Weir Engineering's premises, and there was no evidence of any kind
of activity in Newlands Road. Given that some of the
reported cases, including in particular Jones v. Carnegie, had involved disruption of
traffic on a public thoroughfare, this, he submitted, created an important
distinction in the present case. Mr Shead also noted that the advocate depute had submitted
that the respondents had had the intention of disrupting the flow of traffic
through the entrance, but such an intention was not set out in the terms of the
charge. Moreover, there was no direct
evidence of intention, and any intention which the respondents had could only
be a matter of inference. Mr Shead also founded on the fact that, notwithstanding the
terms of the charge which refers to obstructing "the lawful passage of
persons", there was in fact no obstruction of pedestrian access and egress, and
it was only vehicular traffic which had to be diverted to another entrance.
[12] In support of his submission that in the present case the
sheriff had come to the correct conclusion, Mr Shead
referred to a passage in the opinion of Lord Justice-Clerk Macdonald in the,
now, very elderly case of Ferguson v. Carnochan
(1889) 16R.(J.)93; 2 White 278. That passage is quoted with approval in Smith
v. Donnelly (at para. [11]), and it is as
follows:
"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."
Commenting
on the foregoing passage later in his opinion in Smith v. Donnelly (at para. [17]), Lord Coulsfield
notes that it is clear 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".
Mr Shead invited us to attach weight to the
fact that the two elements mentioned by Lord Coulsfield
are expressed conjunctively, and not as alternatives.
[13] Mr Shead submitted that, on the basis
of the evidence adduced in the present case, it was difficult to imagine
ordinary people being alarmed or distressed by what was going on; and, even
more so, it was difficult to envisage that the actings
of the respondents were likely to lead to serious disturbance. Mr Shead also
founded on the case of Owens v. Donaldson as supporting the view that,
where there is already a very large police presence at the locus, conduct which
might in other circumstances amount to a breach of the peace will not be held
as doing so. (The foregoing case is not
reported in its own right, but the Opinion of the Court is printed in the
Commentary to Dyer v. Hutchison and Others 2006 SCCR 377.)
[14] Finally, Mr Shead noted yet another
part of the charge in the complaint where, he said, the evidence was
insufficient. That is the part of the
charge where it is alleged that all of the respondents did "inscribe signs and
logos on said roadway". As we have
previously noted, the only evidence in that connection came from a single
police officer and related only to the respondent, Oliver Munro. Mr Shead pointed
out that that evidence was incapable of implicating the respondents whom he
represented, and was in any event uncorroborated.
[15] Mr Forbes, for the fourth respondent, Oliver Munro, adopted all
that had been said by Mr Shead. In relation to his own client, he too noted
the paucity of the evidence regarding inscribing signs and logos on the
roadway; he noted that such evidence as there was in relation to the fourth
respondent was uncorroborated; and he also observed that in any event that
uncorroborated evidence was to the effect that Mr Munro had desisted from what
he was doing on being told not to.
Discussion and decision
[16] It is, in our opinion, clear from all of the authorities to
which we have referred that, in determining whether or not there has been a
breach of the peace, regard must be had both to the nature and quality of the
conduct complained of and also to the likely consequences of that conduct. Moreover, as was pointed out in Dyer v. Hutchison
and Others, regard must also be had to the context in which the conduct in
question took place. We consider that
Lord Coulsfield plainly had all of those
considerations in mind when, as we have previously noted, he said, in Smith
v. Donnelly, 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".
[17] In the present case there are, in our opinion, various matters
which, taking the Crown evidence at its highest, must
be taken into account in order to determine whether or not the sheriff was
entitled to uphold the submissions that there was no case to answer. First, this was a very small demonstration,
involving no more than six people in all.
Second, it was at all times entirely peaceful, and there was no evidence
of anyone being alarmed or distressed by what was going on. Third, it took place at a private entrance to
the property of Weir Engineering and, contrary to what is averred in the
charge, not on a public road. Fourth,
there was no obstruction to pedestrian access to and from Weir Engineering's
property, and the only practical consequence of the demonstration was that an
unspecified number of vehicles had to be diverted so as to gain access to that
property through another entrance some 300 yards away. Fifth, there was no evidence to suggest that
the demonstration might, or was likely to, lead to a disturbance of a serious
kind. That is in contrast to the case of
the appellant, Gaynor Barrett, in the case of Jones v. Carnegie. As appears from the Opinion
of the Court in that case (at para. [36]), she
was part of a demonstration which had blockaded the main gate at the entrance
to the naval base at Coulport where, by the end of
the day, workers would be seeking to leave work. In that situation it was held that the
justice who had heard the trial had been entitled to conclude that this would
have caused alarm and serious disturbance.
Sixth, as we have noted above, there was no evidence to link the first,
second or third respondents to any inscribing of signs or logos on the roadway,
and the evidence in that connection relative to the fourth respondent was
uncorroborated.
[18] A further matter, which, as we have noted earlier, was advanced
by the advocate depute, was that there had been a significant deployment of
police resources to deal with the protest.
It indeed seems to have been the case that that was so. However, we can find nothing in the evidence
to indicate a reason, specific to this particular protest, which would justify
such a large police presence at the scene; and we tend to think that the size
of the police presence may have had more to do with general police concerns at
the time of the G8 summit meeting than with anything relating to what this
particular protest turned out to be.
[19] Looking at the evidence in this case as a whole, and taking it,
as we must, at its highest, we are not persuaded that the sheriff was wrong to
sustain the submissions of no case to answer.
At most, as the sheriff has said, this was a "very low key protest". It was at all times peaceful and, as we have
noted, there was no evidence of anyone being alarmed or distressed. Nor, in that situation, do we consider that
what the respondents were doing can be characterised as being "flagrant". In Dyer v. Hutchison this Court
suggested that the recurring use of the word "flagrant" in recent cases may not
always be helpful, but for present purposes we simply say, adopting the word
used by Lord Coulsfield in the passage quoted
earlier, that the conduct of the respondents was not in our view severe enough
to cause alarm to ordinary people. Furthermore,
there was no evidence to suggest any likelihood that what the respondents were
doing would, or might, lead to any serious disturbance on the part of others.
[20] For the foregoing reasons we are satisfied that the sheriff was
entitled to sustain the submissions of no case to answer. Accordingly, we shall answer the two
questions in each of the stated cases in the affirmative, and we shall refuse
the appeals.
