Alexander Allan Bowes V. Procurator Fiscal, Aberdeen
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Brian A Lockhart,Lord Osborne,Lady Smith |
| Judgment Date | 08 June 2010 |
| Neutral Citation | [2010] HCJAC 55 |
| Published date | 08 June 2010 |
| Docket Number | XJ826/07 |
| Court | High Court of Justiciary |
| Date | 08 June 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Osborne Lady Smith Sheriff Principal Lockhart | [2010] HCJAC 55 Appeals No: XJ826/07 OPINION OF THE COURT delivered by LORD OSBORNE in BILL OF SUSPENSION by ALEXANDER ALLAN BOWES Suspender; against PROCURATOR FISCAL, ABERDEEN Respondent: _______ |
Suspender: Lamb, Q.C., Miss Mitchell; George Mathers, Aberdeen
Respondent: Ferguson, Q.C. Advocate depute; Crown Agent
8 June 2010
The Background Circumstances
[1] On 27 April 2006, the suspender appeared at Aberdeen Sheriff Court to answer a summary complaint, to which he pled guilty as libelled. The terms of the charge in that complaint were as follows:
"On 20 January 2006 at various roads between Banchory and Old Kemnay Road, Port Elphinstone, Inverurie, Aberdeenshire, you Alexander Allan Bowes did conduct yourself in a disorderly manner, utter comments of a sexual nature towards NC ... then aged 14 and did commit a breach of the peace."
On that date the court adjourned the diet for the purposes of obtaining social enquiry and community service reports until 25 May 2006. On the latter date, the suspender again appeared before the sheriff and, as had been the case on 27 April 2006, he had legal representation. The sheriff had available to him a transcript of the narrative of the offence, which had been put before the court on 27 April 2006. The sheriff also had available to him a social enquiry report and a community service report, along with a proposed probation supervision action plan and a report on the suitability of the suspender to participate in the joint sex offender project programme. The sheriff heard the suspender's solicitor in mitigation.
[2] The Crown narrative of the offence recorded in the transcript indicated that the suspender was a self-employed taxi driver, who had been contracted to collect the complainer, who was then aged 14, from school and take her back to the residential home where she was living at the time. He collected her and she got into the front passenger seat of the taxi. She was the only passenger. He gave her a cigarette which she accepted. He asked her if she had a boyfriend. He asked her what year she was in at school, and she replied that she was in her third year. He told her that if she had been 16 her name would go into his "little black book". He showed her where he kept this "little black book", namely in the area of the sun visor of the passenger side of his taxi. He then asked her if she was "on the pill". He asked if her mother knew she was not on the pill, and then asked her if her mother knew about her sex life. It was indicated that the complainer became very alarmed and upset as a consequence of these remarks and questions. After arrival at the home, she reported the matter and the police were contacted. The suspender was subsequently interviewed by the police when he said that the complainer was a young female aged 14 or 15 and had been in school uniform. He said he had had a conversation with her about smoking. When he was asked about whether her boyfriend had been discussed, he said:
"I'll just have to think. I cannae mind off hand. I think she actually said she had a boyfriend. I mind saying watch what you're doing, you've got to be careful. What I was actually saying was don't fall pregnant and get into more bother than you are in."
He went on to say:
"I don't think I said make sure you're on the pill or he uses a condom. If I did say anything like that I was just trying to say it in a good way, not a bad way."
[3] On 25 May 2006, the suspender's solicitor advised the court that his client accepted he had caused upset, but did not accept that there was a sexual motive to his behaviour. However, the sheriff concluded that the offence did possess a significant sexual element. In these circumstances, the court certified, under section 92(2) of the Sexual Offences Act 2003, that the suspender had been convicted of the offence in question; that the offence was a sexual offence to which part 2 of that Act applied; and that the court had so stated in open court. The sheriff disposed of the case by making a probation order of 2 years duration.
[4] By note of appeal against sentence, dated 31 May 2006, the suspender appealed to this court against the probation order and against the sheriff's decision to make the suspender subject to the notification requirements of the Sexual Offences Act 2003. The contention advanced in that note of appeal was in these terms:
"It is submitted that in the absence of any explicit sexual content, the comments made by the appellant, while clearly upsetting and distressing for the complainer, fall short of containing what can reasonably be described as a 'significant sexual element' and that accordingly the sentence of 2 years probation is excessive as is the appellant's inclusion on the Sex Offenders' Register."
[5] The suspender's appeal against sentence came before this court on 8 December 2006, when the court, having heard counsel for the then appellant, continued the appeal to a date to be afterwards fixed, to allow him an opportunity to lodge a Bill of Suspension. Subsequently a Bill of Suspension at the instance of the suspender was lodged on 11 July, 2007. On 16 April 2008, the Bill of Suspension came before the court at a procedural hearing when the court ordered that it should be the subject of a full hearing, to hear submissions on the matters raised in paragraph 3 of the Bill. It also ordered that the sentence appeal should be called along with the Bill of Suspension. The whole matter came before the court on 2 July 2008 when counsel for the suspender intimated that she wished to withdraw from acting. That was allowed, whereupon the court continued the case to a date to be afterwards fixed. On 9 April 2009 the Bill of Suspension and the appeal against sentence came before a sentencing appeal court, constituted by two judges. On that occasion counsel for the suspender intimated to the court that the case of Harris v Her Majesty's Advocate (Appeal No. XC143/09), which was concerned with the nature of the offence of breach of the peace, had been remitted to an appeal court of five judges. In these circumstances a motion was made for the present case to be remitted to a bench of five judges. That course was opposed by the Crown. After discussion, the court continued the hearing, in order to afford counsel for the suspender an opportunity more fully to consider the position. The case was continued to a date to be afterwards fixed and parties were directed to lodge written submissions prior to that hearing. The case finally came before this court on 19 January 2010, when full argument was heard.
The Bill of Suspension
[6] The Bill of Suspension, after narrating the relevant history of the case, goes on to set forth the grounds on which it is based, which are these:
"3. That the circumstances of the offence as narrated by the respondent did not amount to a breach of the peace. The conduct complained of was not such that it met the definition set out in Smith v Donnelly 2001 S.C.C.R. 800. In any event it is to be doubted that the content of his interview with the Police could be regarded as providing an admission sufficient to corroborate the complainer's account and for the court to draw the inference that a breach of the peace had been committed. If so then the prosecution was oppressive and represented an abuse of process.
4. That being so the complainer not having committed the crime of breach of the peace the conviction should be suspended simpliciter.
5. That in any event the complainer pleaded guilty under a material misapprehension. He had originally been charged with a separate offence. When advised by his then agent that the Respondent would be prepared to accept a plea of guilty to a charge of breach of the peace, the complainer thought that meant his position (advanced in mitigation) was being accepted. In other words he thought that there was no prospect of the offence being regarded as one caught by the Sexual Offences Act 2003. Had he thought otherwise he would have pleaded not guilty."
Submissions for the Suspender
[7] When the case came before us for a hearing, we had the benefit of written submissions framed on behalf of the suspender. In those submissions it was submitted that, in the light of the decision of a court of five judges in Harris v Her Majesty's Advocate [2009] HCJA. 80 and the reasoning in it, the present case could not be considered to involve breach of the peace. The suspender had uttered comments of a sexual nature to the complainer while she was within a taxi. He made the remarks during the course of a conversation. There were no third parties present during this time. The complainer became alarmed and upset and reported the matter at her home, whereupon the police were contacted. It was submitted that the present case was on all fours with Young v Heatly 1959 J.C. 66, which had been disapproved by the court in Harris v Her Majesty's Advocate. For the reasons given by the court in that case, it was submitted that the suspender had made comments which did not amount to the public order offence of breach of the peace.
[8] It was also submitted that there was no restriction on this court in relation to the quashing of a conviction for breach of the peace where the nature of the behaviour did not in fact amount to a breach of the peace, that is to say where the libel was fundamentally null, even in a situation where the suspender had pled guilty to the charge. At the time of the plea, the case of Young v Heatly was still considered to be good law. Since that time, it had been disapproved. The suspender had therefore pled guilty to something which was not the crime of breach of the peace. The plea was tendered in some sense in error, the suspender thinking that the behaviour which he admitted was criminal, presumably on the advice of his solicitor.
[9] It was submitted that it was...
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