APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Brodie Sheriff Principal Lockhart	[2013] HCJAC 82 Appeal No: XJ219/13   OPINION OF THE COURT   delivered by LADY PATON   in   APPEAL AGAINST CONVICTION   by   ANTHONY McGUINNESS   Appellant;   against   PROCURATOR FISCAL, ALLOA   Respondent:   _______

 

Appellant: J Keenan, Solicitor Advocate; Public Defence Solicitors Office, Edinburgh

Respondent: A Edwards, AD; Crown Agent

 

11 July 2013

 

Introduction

[1] On 19 December 2012, after a summary trial at Alloa Sheriff Court, the appellant was convicted of the following offence:

"On 22 November 2012 at 53 Tenacres, Sauchie, Alloa you ... did conduct yourself in a disorderly manner and did ... approach Leanne Kane causing her to lock herself in a motor vehicle, placing her in a state of fear and alarm, and commit a breach of the peace."

 

[2] The appellant appeals against conviction. At page 15 of the Stated Case, three questions are posed. Question 2 failed to pass the sift. Questions 1 and 3 are in the following terms:

"1. Did I err in law by repelling an objection to the evidence of the complainer relating to an alleged assault on her by the appellant on 21 November 2012? ...

3. Upon the facts found to be admitted and proved was I entitled to convict the appellant of the charge of breach of the peace?"

 

Issues in the appeal

[3] Two issues arose in this appeal: first, whether certain evidence about an alleged previous assault by the appellant on his wife (the complainer Leanne Kane) was properly admitted during the trial (Question 1); and secondly, esto that evidence was properly admitted, whether the facts found amounted to a breach of the peace (Question 3).

[4] For reasons which will become apparent, we address the second matter first.

[5] The Findings-in-Fact at pages 3 to 6 of the Stated Case disclose a deteriorating relationship between the appellant and the complainer. Findings-in-Fact 3 to 8 relate to an alleged previous assault, referred to in paragraph [2] above. Read short, the complainer maintained that on an earlier date in November 2012 (agreed by the parties to be 20 November, and not 21 November as in the Stated Case) the appellant had pushed her onto a bed, put one hand on her throat and another over her mouth, and refused to desist until the complainer was forced to say that she would try to resume a full relationship with him (the whole incident occurring in the presence of the complainers' young children aged 7 and 2). According to the complainer, she felt petrified. She went to her mother's workplace in a state of distress (a fact corroborated by her mother). She called the police and was advised that if the appellant came near her again, she should immediately telephone them. The complainer then went home, packed some belongings, and went to stay with her parents at their home at 53 Tenacres, Sauchie, Alloa. Subsequently, as is noted in Finding-in-Fact 8, the appellant was released from Alloa Sheriff Court on 21 November 2012 without being charged with, or subsequently prosecuted for, any offence.

[6] On 22 November 2012, the complainer, her young children, and her mother, returned to 53 Tenacres after an outing. The sheriff's Findings-in-Fact are as follows:

"9. The following day, Thursday 22^nd November 2012 the complainer was at the home of her parents at 53 Tenacres, Sauchie in the afternoon. She and her mother had done some shopping. They collected the complainer's son from school in Tullibody at about 03:05 pm and arrived at the complainer's parents' house at between 03:15 and 03:30 pm.

10. They travelled in the complainer's mother's Nissan Micra 4 door motor car. The complainer's mother was driving. The complainer was the front seat passenger and the children travelled in the rear seat. Her younger child was in a baby seat. The car was parked by the complainer's mother in a parking bay facing onto the side of the complainer's parents' house and nose onto the pavement between the house and the parking bay. There were other parking bays there.

11. The complainer's mother and elder son went to the house. The complainer was getting out of the car. She went to get her younger son out of the back seat. She heard a car drive up and realised the Appellant was driving up the scheme. She said, 'Oh no'. She felt alarmed. The Appellant parked beside the complainer's mother's car about a car's width away.

12. The complainer's mother told the complainer to get back in the car. The complainer was in the front passenger seat. Her mother locked the car using the remote key control. She gave the complainer's elder son the keys to open the house.

13. The complainer had been provided with a 'Sky Tracker' personal alarm by the police. She was under instruction from the police to use it if the Appellant should come anywhere near her. She pressed this and telephoned the police from within the car.

14. The Appellant approached the complainer, placed his hand on the window of the car and knocked a couple of times. He said in a normal tone of voice that he wanted to talk. The complainer's mother told him to go away and he said, 'I'll get back in the car'. The complainer was on the telephone to the police. The Appellant eventually flew off down the street his wheels spinning. The complainer got out of the car and went back into the house. The police arrived.

15. The complainer felt petrified and scared of the Appellant being present when he had been told not to be anywhere near her.

16. On 22^nd November 2012 the Sheriff at Alloa granted interdict ad interim in favour of the complainer Leanne Kane against Anthony McGuinness. The said order interdicts the Appellant from molesting the complainer Leanne Kane by abusing her verbally, threatening her, by putting her into a state of fear, alarm or distress, using violence towards her or by communicating with her by any means, or deliberately coming within twenty five meters of her all within the jurisdiction of Tayside Central and Fife until further order of Court.

17. On 3^rd December 2012 the Sheriff at Alloa attached a Power of Arrest to the interdict previously granted in terms of the Protection from Abuse (Scotland) Act 2001."

 

In his subsequent Note, the sheriff explains at paragraph [26]:

"[26] It was a matter of agreement that on the same day as the alleged breach of the peace the complainer had sought and been granted an interim interdict against the Appellant which, on 3^rd December, about a week later, had a power of arrest attached in terms of the Protection from Abuse (Scotland) Act 2001. The timing of the granting of the interim interdict in relation to the events of 22^nd November which are the subject of the charge presently under consideration was not a matter of agreement or any other evidence. I therefore proceeded upon the basis that knowledge of the interim interdict could not be imputed to the notional reasonable person in making an objective assessment as to whether the conduct of the Appellant would cause genuine alarm. The granting of the interim interdict and subsequent attachment of a power of arrest, which in turn implies a continuation of the order after service, might offer some comfort in supporting the notion that a reasonable person equipped with the knowledge of the whole circumstances would have been genuinely alarmed but it was not a factor I took into account in making that assessment. The existence of the interim interdict and the protection it afforded was, in my view relevant to the Court's disposal as I discuss below."

 

Submissions for the appellant

[7] Mr Keenan for the appellant submitted that the facts found proved by the sheriff did not amount to a breach of the peace. Even if any observer knew about the background of a deteriorating relationship, and also about the complaint of an earlier assault, its effect on the complainer, and the effect on her of the appellant's arrival outside her parents' house on 22 November 2012 (i.e. again causing her to feel petrified), what occurred after the appellant's arrival at 53 Tenacres did not satisfy the conjunct test set out in authorities such as Smith v Donnelly 2001 SCCR 800 and Harris v HM Advocate 2010 SCCR 15. The conviction should be quashed.

 

Submissions for the Crown

[8] The Advocate depute submitted that several factors had to be taken into account:

·       The complaint of the earlier serious assault by the appellant on the complainer, leaving the complainer distressed and petrified.

·       The complainer's alarm and fear on seeing the appellant arrive, causing her to exclaim "Oh no".

·       The complainer's actions in getting back into the car, with her mother locking the car doors from the outside by remote control.

·       The complainer being seen sitting in the car activating an alarm, and also making a telephone call.

·       The appellant walking over to the car in which the complainer was sitting, knocking on the window, and saying "I want to talk".

·       The complainer's mother telling the appellant to "go away".

·       The appellant responding by saying "I'll get back in the car" (his own car), doing so, then driving away with his wheels spinning.

Taking all of those factors into account, it was submitted that it would be obvious to any observer that something alarming was happening, that something was amiss. When the evidence about the earlier assault (properly admitted: Nelson v HM Advocate 1994 SLT 389) was taken into account, the conduct was seen "in its context" (Smith v Donnelly cit sup paragraph [17]) and a fortiori the conjunct test was satisfied. Any reasonable observer would have been so concerned for the safety of the complainer that there would have been a threat of public disorder. Thus the appellant had committed a breach of the peace.

 

Discussion and decision

[9] Guidance on the common law of breach of the peace was provided in Smith v Donnelly 2001 SCCR 800, 2002 JC 65. As was explained in paragraph [17]:

" ... what is required to constitute the crime is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community ...

conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person ..."

 

[10] In Paterson v HM Advocate 2008 SCCR 605, 2008 JC 327, at paragraph [22] it was confirmed that the conduct:

" ... does not require to cause serious disturbance to the community. It is sufficient that it threatens such disturbance ..."

 

[11] Further guidance was given by a five-judge bench in Harris v HM Advocate 2010 SCCR 15, 2010 JC 245, which inter alia approved the approach taken by Lord Justice Clerk Macdonald in Ferguson v Carnochan (1889) 16R(J) 93, when 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 ..."

 

At paragraph [16] of Harris it was reiterated that:

" ... the conduct ... must 'threaten serious disturbance to the community' ..."

 

[12] In this appeal, no question is raised about the public element of the offence: the incident had taken place in a public street. The issue is whether the appellant's behaviour was severe enough to cause alarm to ordinary people and threaten serious disturbance to the community.

[13] Taking into account all the factors relied upon by the Crown, including (for present purposes) the complaint of a serious earlier assault and its effect on the complainer, we have reached the view that what occurred on 22 November 2012 did not amount to a common law breach of the peace as defined by the authorities. Had there been, for example, shouting, swearing, threatening words or behaviour, attempts to force open the car door or to get into the car in some other way, or simply a greater persistence in attempting to talk to the complainer (including a refusal to obey the complainer's mother's command to "go away" and a more protracted confrontation at the car), it would in our opinion be arguable that what was occurring would be likely to alarm ordinary people and to threaten serious disturbance to the community because inter alia they might be alarmed by the behaviour but, more importantly, would fear for the complainer's safety. But that is not what occurred in this case. There was an apparently normal attempt to speak to the complainer (which although highly unwelcome to the complainer, and causing her immediate fear and alarm, was not in itself an offence or a breach of a court order such as interim interdict). When that attempt was rebuffed and the appellant was told to go, he did in fact walk away from the car in which the complainer was sitting, get into his own car, and drive off. The incident did not therefore escalate, as it could have done, into something which might well have constituted a breach of the peace. Even if knowledge or awareness of the deteriorating relationship, the allegation of a previous serious assault by the appellant on the complainer, and the fear which that assault had engendered in the complainer, were to be attributed to those observing, the incident on 22 November 2012 was not sufficient in our view to alarm ordinary people or to threaten serious disturbance in the community.

[14] In the result therefore we answer Question 3 of the Stated Case in the negative. We allow the appeal and quash the conviction for breach of the peace. It follows that it is unnecessary for this court to address Question 1.