Appellant: F Mackintosh; John Pryde & Co, Edinburgh

Respondent: A Brown QC, Advocate Depute; Crown Agent

9 August 2013

Introduction

[1] On 24 July 2012 the appellant was convicted in the Justice of the Peace Court, Glasgow, of the following offence:

"On 27 November 2010 at Royston Road, Baird Street Police Office and elsewhere in Glasgow you ... did conduct yourself in a disorderly manner shout, swear, utter threats of violence to police officers and commit a breach of the peace, you ... did commit this offence while on bail, having been granted bail on 13 October 2009 at Airdrie Sheriff Court."

[2] The appellant appeals against conviction. At page 9 of the Stated Case, one question is posed, namely:

"1. Was I entitled to repel the no case to answer submission?"

The evidence for the Crown
[3] In his Note, the justice set out the evidence led on behalf of the Crown as follows:

"On 27^th November 2010 ... two police witnesses were on plain clothes duty travelling in an unmarked police vehicle on Royston Road, Glasgow just before 1100 hours. The weather was extremely cold with thick ice and snow, although the single carriageway road had been cleared. A large white van was double parked outside a newsagent shop in the road ahead of the police vehicle, and in order to overtake the van, vehicles had to drive into the opposing lane. When vehicles drove into the opposing lane then traffic in the opposing lane had to stop. DC McKenzie did consider the positioning of the large white van to be dangerous but neither officer accepted that the positioning of their vehicle to the offside of the large white van and in the centre of the carriageway posed any danger. The road was quite busy with traffic at the time and there were pedestrians in the vicinity.

The police vehicle drew up side by side with the van to tell the driver to move on so that the van would not obstruct the road. DC Cassidy was the passenger in the police vehicle and showed his warrant card to the appellant. He indicated that he was a member of CID and that the driver should wind down his van window, to allow conversation. The appellant looked away and did not comply with the request. The officer repeated the request when the appellant looked back. The appellant reacted angrily and retorted 'fuck off'. DC Cassidy described the appellant as 'extremely upset and angry'. The driver of the police vehicle leaned forward to see the person who was shouting and swearing. DC Cassidy tried to indicate that they only wanted the appellant to drive on, but the driver shouted over him with a torrent of abuse. DC McKenzie recalled the appellant shouting 'I know you are CID you fucking pricks'. The appellant said he had done nothing wrong and the police couldn't make him do anything. DC Cassidy heard the appellant shout 'Fuck off, I've done fuck all wrong'. He continued to be angry and aggressive. There was no apparent reason for the aggressive behaviour towards the polite and reasonable approach of the police. After half a minute or so the van had not moved and the appellant was still angry and aggressive.

Both officers approached the van to investigate why the appellant would not stop blocking the carriageway and was swearing loudly and aggressively. DC Cassidy arrived first at the driver's door. The appellant was agitated and made his way out of the van. DC Cassidy put a hand on the witness for his own safety and denied having dragged the appellant from the van. The appellant shouted 'Do you want a fucking square go?' directed at the police officers. He was still angry and unresponsive to the police requests.

He was cuffed and placed in the rear of the police vehicle, where he continued to shout and swear. He was told that if he calmed down then a fixed penalty would be issued for breach of the peace and he could go on his way. The appellant again shouted and swore at the officers and made threats of violence. He was then driven to Baird Street police office. He continued his aggressive behaviour and threats of violence during the few minutes drive to the police office. In the police office when cautioned and charged the appellant replied 'A breach of the peace is fuck all'.

...

I agreed with the respondent that the facts of Donaldson v Vannet and Harris v HMA should be distinguished from the instant case. Had the appellant removed himself and his van from the scene then this incident would not have arisen. To my mind the police were rightfully pursuing the matter of the van blocking the carriageway. When the appellant was unresponsive and abusive, shouting and swearing and failing to comply with a lawful request to move on and stop blocking the carriageway then it fell to the officers to pursue the matter. The place was a public road, outside a newsagent's at eleven o'clock in the morning, when the road was moderately busy with traffic and there was evidence that there were pedestrians about. It was entirely likely that a pedestrian would have heard the shouting and swearing and the threats made to the police officers. Motorists held up by the van may have heard the shouting. The police vehicle had drawn up alongside the van, expecting that they would make a brief stop, so while they were stopped then both lanes of traffic were blocked. There was a risk that motorists on the road would become impatient and a potential risk of road rage increased the risk to public safety in weather conditions of thick ice and snow.

I repelled the submission [of no case to answer] and found that there was a case to answer."

Submissions for the appellant
[4] Mr Mackintosh for the appellant submitted that (i) there was no evidence of any actual upset or annoyance caused by the appellant's behaviour; (ii) the conduct described was not serious enough to alarm ordinary people or to threaten serious disturbance to the community; (iii) where there was no actual alarm, upset, or annoyance, the conduct complained of had to be "flagrant" - i.e. above the de minimis level.

[5] There were several parts to the sequence of events. First, the appellant's expletives, uttered when his van window was closed. There was no evidence of alarm, upset, or annoyance on the part of the police officers, and there was a limited chance that anyone else would be involved. Secondly, when the appellant emerged from his van, all that he shouted was "Do you want a fucking square go?" whereupon he was hand-cuffed and placed in the back of the police car. The incident was brief, and there was an absence of physical behaviour (such as arms or fists flailing) suggestive of violence. Thirdly, the appellant continued to shout and swear in the police car and police office. This latter part contained no public element, and thus a necessary constituent of the offence of breach of the peace was lacking. Reference was made to Harris v HM Advocate 2009 JC 245; Smith v Donnelly 2001 JC 65; Paterson v HM Advocate 2008 HCJAC 18; Ferguson v Carnochan (1889) 16R 93; Kinnaird v Higson 2001 SCCR 427; Rooney v Procurator Fiscal, Stirling [2013] HCJAC 57; MacLellan v Procurator Fiscal, Oban, 27 March 2012. The officers had not been in uniform. What had occurred was not that unusual in the streets of Scotland. The whole incident had been brief, and had not been genuinely alarming and disturbing to the community. Thus the evidence was insufficient in law. The question posed at page 9 of the Stated Case should be answered in the negative.

Submissions for the Crown
[6] The advocate depute submitted that each case was a question of facts and circumstances (MacLellan v Procurator Fiscal, Oban, 27 March 2012). The whole course of conduct, starting inside the van, then outside the van, then when being put into the police car and driven away, satisfied the conjunctive test referred to in Harris v HM Advocate 2009 JC 245. The defence argument failed to appreciate the reality of the conduct. The justice was entitled to take the Crown case at its highest, and was entitled to reject the "No case to answer" submission. The appeal should be refused.

Discussion and decision
[7] A five-judge bench in Harris v HM Advocate 2010 SCCR 15, 2010 JC 245 approved the approach taken by Lord Justice Clerk Macdonald in Ferguson v Carnochan (1889) 16R 93, when 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 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' ..."

and in Smith v Donnelly 2001 SCCR 800, 2002 JC 65, at paragraph [17] it was said that:

"... 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 ..."

[8] Paterson v HM Advocate 2008 SCCR 605, 2008 JC 327 confirmed that the conduct:

" ... does not require to cause serious disturbance to the community. It is sufficient that it threatens such disturbance ..." [paragraph 22].

[9] In the present case, we have no doubt that the justice was entitled to reach the view he did. The locus was a city road with a single lane in each direction. Members of the public were using the road, whether as pedestrians or as drivers. The appellant's behaviour, involving as it did double-parking his van, a refusal to move on despite the requests of police officers, the resultant blocking of both lanes (as the police car was stationary in the other lane while trying to deal with the problem), the appellant's angry demeanour and mouthings whilst in his van with a closed window, his provocative and aggressive shouting and swearing on emerging from his van when he indicated to the officers that he was ready for a physical fight, thus creating a hostile and volatile situation which could easily have escalated into violence - a situation contained by his being hand-cuffed, placed in the police car, and driven away - was in our opinion conduct which the justice was fully entitled to categorise as severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. As was pointed out in Paterson v HM Advocate, cit sup, actual alarm, annoyance, or disturbance to the community need not be established: the threat of such disturbance is sufficient. Each case depends on its facts (MacLellan v Procurator Fiscal, Oban 27 March 2012, paragraph [7]). In the particular circumstances of this case, the justice was, on the evidence presented by the Crown, entitled to take that evidence at its highest, and to conclude that the evidence was sufficient to satisfy the conjunctive test set out in Harris v HM Advocate 2009 JC 245.

[10] In the result therefore we answer question 1 of the Stated Case in the affirmative, and refuse the appeal.