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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lady Paton
C.G.B.
Nicholson, CBE, QC,
Sheriff
Principal B. Lockhart
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[2008HCJAC 4]
Appeal No: XJ1092/08
OPINION OF THE COURT
delivered by C.G.B.
NICHOLSON, CBE, QC
(sitting as a Temporary
Judge)
in
APPEAL BY STATED CASE
in causa
WILLIAM MILLER
Appellant;
against
PROCURATOR FISCAL, GLASGOW
Respondent:
_______
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Appellant: Collins, Solicitor
Advocate; Capital Defence Lawyers
Respondent: S. Bowie,
A.D.; Crown Agent
13 January 2009
Background
[1] On
19 June 2008 the
appellant appeared at Glasgow District Court for trial on a charge of breach of
the peace. That charge was in the
following terms:
"On 09 May
2008 at Craigburn Gardens, Glasgow you .... did
conduct yourself in a disorderly manner shout, swear, struggle with police
officers and commit a breach of the peace".
The charge further alleges that the
appellant committed the offence while on bail, but that part of the charge is
of no relevance in this appeal. The
appellant was found guilty after trial and, on the same day, the Justice
imposed a fine of £100. The appellant
has now appealed against conviction.
Findings in fact
[2] In
this case it is appropriate that we should set out the findings in fact which
the Justice has included in the Stated Case. They are within short compass, and are as
follows:
"1. That at
approximately 7.00 pm on 9 May 2008 Constables Cattigan and
Foster approached a group of youths at the locus.
2. That
several of the youths dispersed and the group that remained consisted of the
appellant and four females aged between 16 and 18.
3. That the
officers began taking details of the group.
4. That the
Appellant jumped from a wall and moved towards the Officers in a way that PC
Foster took to be 'aggressive'.
5. That the
Appellant thereafter shouted aggressively at the Officers 'I've done fuck all -
you're not talking to me'.
6. That PC
Cattigan was 'alarmed and distressed at that language'.
7. That PC
Cattigan warned the Appellant about his behaviour but the Appellant then
repeated the above mentioned phrase.
8. That the
Appellant's conduct had the potential to lead to upset and alarm due to the
presence of four females at the locus and that the locus was adjacent to a
residential area.
9. That the
Appellant was then arrested and in the course of the arrest struggled with the
Officers.
10. That
the Appellant was cautioned and charged with breach of the peace to which he
made no reply.
11. That
the Appellant had consumed alcohol prior to the incident and was a 'wee bit
drunk'.
12. That
the Appellant did on 9 May 2008 at Craigburn Gardens, Glasgow conduct
himself in a disorderly manner shout, swear, struggle with police officers and
commit a breach of the peace."
The evidence and the approach of
the Justice
[3] The
foregoing, brief, findings in fact are to a limited extent enlarged by what the
Justice has said in the Stated Case regarding the evidence which was adduced
before him. The evidence for the Crown
came from the two police officers mentioned above. They gave evidence that at the time in
question they were on uniform foot patrol when they encountered several youths
in a wooded area overlooked by the rear gardens of Craigburn Gardens, Glasgow. They stated that several of the youths made
off on seeing the officers, and that the group that remained consisted of the
appellant and the four females mentioned in the findings in fact. The officers said that they began taking
details of members of the group, and that the appellant then jumped from a
wall. The Justice goes on to say, in
accordance with the evidence, that the appellant then "stated" to the officers
the words quoted in finding in fact 5. He
says that PC Cattigan gave evidence that this phrase had been "shouted" by the
appellant, but he also notes that PC Foster said that it had been "quite loud
.... it was a raised voice, somewhere between talking and shouting". As noted in the findings in fact, it appears
that PC Cattigan said in evidence that he was alarmed and distressed. However, the Justice's narrative of the
evidence discloses that PC Foster said that "I wasn't alarmed or distressed but
there were four females present" although the females did not "exhibit alarm or
distress".
[4] The
Justice then makes it clear that, following on the occasion when the appellant
repeated his statement to the police officers, he was then informed that he was
being arrested for breach of the peace, and that, during that arrest, he
struggled with the officers. That part
of the evidence from the police officers indicates plainly that, at least in
their eyes, the appellant had committed a breach of the peace by saying, or
possibly shouting, to them twice the words "I've done fuck all - you're not
talking to me". The charge as libelled
in the present complaint also includes the struggle as an integral part of the
alleged breach of the peace, but it is clear that, at least so far as the police
officers were concerned, the crime of breach of the peace had already been
committed before any struggle took place. We return later to consider the significance
of this point.
[5] At
the conclusion of the Crown evidence the Justice was invited to sustain a
submission that there was no case to answer. The grounds for that submission were, first,
that the evidence as to what had taken place was insufficient to show that the
conduct complained of amounted to a breach of the peace. Second, it was also submitted that there was
no corroboration of the evidence that the appellant had been shouting.
[6] In
the Stated Case the Justice sets out his reasons for rejecting that submission
as follows:
"Having
considered the submission I decided that there was a case to answer. In relation to the first ground of the
submission, I had heard evidence from PC Cattigan that he was 'alarmed and
distressed' at the language used by the appellant. I also felt it was important to place the actings
of the appellant in context. The
context here was a gathering of youths, in a residential area, a number of whom
had dispersed on seeing the Officers approach, that now consisted of the
appellant and four females. The actings
of the appellant, taken as a whole, which were undertaken in an aggressive
manner according to one of the Officers and the fact that the appellant refused
to desist on being warned by PC Cattigan, had the potential to lead to upset
and alarm due to the presence of the (relatively) young females. In relation to the second ground, I did not
consider the discrepancy to be material."
The Justice does not explain what
he had in mind when he says that the actings of the appellant had the potential
to lead to upset and alarm due to the presence of the (relatively) young
females. As already noted above,
one of the police officers apparently said in terms that those females did not
themselves exhibit alarm or distress, and there is absolutely no evidence to
suggest that, on the contrary, the conduct of the appellant might have inspired
them to behave in a violent or aggressive manner themselves. It is also, we think, to be noted that there
was no evidence to indicate that there were any other members of the public at,
or near to, the locus at the time. Indeed,
there is little evidence to show that the locus was "in a residential area", as
stated by the Justice, given that, as we have noted, the police officers
themselves described the locus as consisting of a wooded area overlooked by
some rear gardens.
[7] Finally,
the Justice very briefly summarises the evidence which was given by the
appellant on his own behalf. He does
not say whether he believed or disbelieved that evidence, but it may be
supposed that he did not attach much credence to it except to the extent that
the appellant apparently accepted that he had sworn at the police officers.
Submissions for the parties
[8] In
the present case we do not consider that it is necessary to set out the
submissions for the parties in great detail.
Suffice it to say that both Mr Collins, on behalf of the appellant, and
the advocate depute referred us to a selection of the many cases on the topic
of breach of the peace which have been reported in the course of the last ten
years or so. On the basis of what is
said in those cases, Mr Collins submitted that the facts which were proved in
the present case do not satisfy the required test. The advocate depute, on the other hand,
submitted that they do, though he was prepared to accept that the present case
falls at the lower end of the scale of seriousness.
[9] The
cases to which we were referred were, in chronological order: Mackay v Heywood 1998 SCCR 210; Kinnaird
v Higson 2001 SCCR 427; Smith v Donnelly
2001 SCCR 800; Dyer v Brady
2006 SCCR 629; and Paterson v H.M. Advocate 2008 SCCR 605.
It is, we think, unnecessary to examine those cases in detail, save to
note that, in Smith v
Donnelly, Lord Coulsfield, delivering the Opinion of the Court, said
(at 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 disturbance of the community".
He went on, at the end of the paragraph, to say that what is required is
"conduct which does present as genuinely alarming and disturbing, in its
context, to any reasonable person". We
also note that, at paragraph 20, his Lordship says, in relation to cases
involving a refusal to co-operate with police or other officials, that "such a
refusal, even if forcefully or even truculently stated, is not likely to be
sufficient in itself to justify a conviction".
Discussion
[10] In our opinion, a striking feature of the present case is the
brevity of the evidence and of the resultant findings in fact. We also observe that, for no stated reason,
the Justice appears to have based his findings in fact on the evidence of one
of the two police officers notwithstanding that evidence to the opposite effect
was given by the other officer. For
example, he finds that the appellant shouted in an aggressive manner, though
that description appears to have been given only by PC Cattigan and not by PC
Foster. The Justice also notes as a
finding in fact that PC Cattigan was alarmed and distressed at the appellant's
language, but he makes no mention in the findings of the fact that PC Foster
apparently said that he was not alarmed or distressed. Most importantly, in our view, he makes no
finding at all in regard to the evidence of PC Foster to the effect that the
four young women who were present did not exhibit alarm or distress when the
appellant was saying what he did. As noted above, the Justice has offered no
reason for basing his findings in fact on evidence given by one police officer
while ignoring, or rejecting, contrary evidence given by the other. This, of
course, raises a clear question as to whether some of the findings were based
on adequately corroborated evidence.
[11] Several other observations may be made in respect of the
findings in fact in this case. First,
it is to be noted that there is absolutely nothing, either in the narrative of
the evidence or in the findings in fact, to suggest a reason why the police
officers should have considered it appropriate to approach the appellant and
his companions, and to seek to take their 'details'. At an early stage in the hearing of the
appeal we commented on the absence of such evidence, and we were advised by the
advocate depute that in fact the police officers were following up an anonymous
telephone call to the police which had alleged that, at the locus in question,
there was a group of youths who were drinking and who were making a
considerable amount of noise. However,
this does not appear to have been mentioned in the evidence given at the trial;
and, most importantly in our view, it was never mentioned to the appellant and
his companions before the police officers began to take their details. Furthermore, there was nothing in the
evidence of the police officers to indicate that, on arriving at the locus,
they themselves saw or heard anything which was consistent with the content of
the anonymous telephone call. It
therefore follows - at least so far as the evidence goes - that at the time
when the officers approached the appellant and his companions nothing untoward
was taking place, and there was no reason for the police to take any interest
in what was going on. If that be the
case - and there is nothing to suggest otherwise - the actions of the police
officers in approaching the appellant and his companions and asking for their
details were without any justification.
[12] A further shortcoming in the evidence is that, in our opinion,
there is in fact insufficient evidence to establish beyond reasonable doubt
that the appellant shouted when he spoke to the two police officers. The Justice has noted that PC Cattigan said
in evidence that the words in question had been shouted, but he has also noted
that the other officer, PC Foster, said that the words were spoken in a raised
voice, somewhere between talking and shouting.
In dealing with the submission of no case to answer the Justice, as
noted above, considered that this discrepancy was not material. The point is a narrow one: but we consider
that, at the very least, the difference between the police officers in their
evidence suggests that any raising of the appellant's voice was no more than
moderate. It is unsatisfactory that, on
this matter as on others noted above, the Justice appears, without giving any
reason for doing so, to have proceeded on the basis of the evidence of one
police officer when there was evidence to the opposite effect from the other
officer. All of that, of course, must
be taken along with the other matters to which we have drawn attention, namely
the fact that no other members of the public were in the vicinity at the time, the
fact that the locus was apparently a wooded area (though that is not mentioned
in the findings in fact), the fact that the young women present at the locus
did not appear to be alarmed or upset, and the fact that only one of the police
officers appears to have been alarmed and distressed. Taking all of the foregoing matters into
account, it is, in our view, difficult, if not impossible, to say that what the
appellant said to the police officers, and the manner in which he did so,
presented as "genuinely alarming and disturbing, in its context, to any
reasonable person", that being, as noted above, the test which was approved in Smith
v Donnelly.
[13] There is, however, one further
matter which requires comment. We have
already mentioned it briefly in passing, and it relates to the fact that it is
clear from the evidence and the findings in fact that, so far as the police
officers were concerned, the appellant had committed a breach of the peace
simply by uttering on two occasions the words which we have earlier quoted. That is what led to his arrest, and to the
subsequent struggle involving the appellant and the police officers. In the present case, the Crown has chosen to
make the struggle an integral part of the breach of the peace charge before the
court but, in accordance with what we consider to be normal practice, the
struggle might well have been the subject of a separate charge under the Police
(Scotland) Act. For present purposes, however, and for the
reasons which we have just given, we consider that the appellant's conviction
can stand only if his conduct, prior to the point of being arrested, can
properly be regarded as amounting to a breach of the peace. In considering that factor, and in addition
to the matters to which we have drawn attention earlier, it is, we believe,
essential to bear in mind that the original approach by the police officers to
the group of which the appellant was a member occurred for no reason that was
explained in the course of the trial, and which appears (in the absence of any
relevant evidence) not to have been occasioned by anything which the officers
either saw or heard when they were near to the group. Moreover, it appears that the police officers
did not give the appellant and his companions any reason for requiring their
'details'.
[14] In the foregoing circumstances it appears to us that any
reasonable person in the position of the appellant at the time might well have
taken umbrage when two police officers, in the absence of any explanation,
suddenly started to demand particulars from him and his companions. The appellant's immediate response was no
doubt expressed somewhat coarsely, but the words which were used cannot have
been of a kind which the police officers had never heard before; and, simply as
a matter of common sense, they cannot, in the circumstances, be regarded as amounting
to a breach of the peace. On the
contrary, they can properly be regarded as a mild, albeit rudely expressed,
protest at what appeared to be wholly unjustified harassment on the part of the
police officers. That being so, it
follows that the purported arrest of the appellant was unlawful: and, from
that, it follows that the struggle which then ensued cannot be regarded as an
integral part of a continuing breach of the peace.
Decision
[15] Taking all of the foregoing into account, we are of opinion
that the appellant was wrongly convicted.
We shall therefore answer the first question in the Stated Case in the
affirmative, and the second question in the negative; and we shall quash the
conviction.
