David Hatcher V. Procurtor Fiscal Hamilton
| Jurisdiction | Scotland |
| Judge | Lord Hardie,Lord Wheatley,Lord Bonomy |
| Judgment Date | 07 September 2010 |
| Neutral Citation | [2010] HCJAC 92 |
| Published date | 07 September 2010 |
| Court | High Court of Justiciary |
| Docket Number | XJ493/10 |
| Date | 07 September 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Hardie Lord Bonomy Lord Wheatley | [2010] HCJAC 92 Appeal No: XJ493/10 OPINION OF THE COURT delivered by THE HONOURABLE LORD BONOMY in STATED CASE by DAVID HATCHER Appellant; against PROCURATOR FISCAL, HAMILTON Respondent: _______ |
Appellant: Shead; The Barony Law Practice, Edinburgh (for Brian Selby & Co, Motherwell)
Respondent: D Young, A.D.; Crown Agent
7 September 2010
[1] This is the latest in a series of cases since Smith v Donnelly 2002 JC 65, 2001 SCCR 800 in which the court has been invited to clarify the definition of the crime of breach of the peace and adjudicate upon the application of that definition in practice. In a number of opinions this Court has affirmed and elaborated on the test, which has come to be known as the "conjunctive test", that requires "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". The most recent authorities are opinions delivered after the appellant's trial. In Harris v HM Advocate [2009] HCJAC 80, 2010 SCCR 15, in which the long-standing decision in Young v Heatly 1949 JC 66, 1959 SLT 250 was over-ruled by a Full Bench, and in WM v HM Advocate [2010] HCJAC 75 the Court focused attention on the need for "a public element" in conduct before it can amount to a breach of the peace, and provided some guidance as to circumstances in which conduct in an apparently private place might be said to have a public element. It was inevitable that the debate would soon move to the question whether severe oral abuse of, and unruly behaviour towards, one domestic partner by another over an extended period within the confines of the family home can amount to a breach of the peace, and more particularly whether in a given case that conduct did constitute a breach of the peace. That is the issue focused in this appeal. The appellant maintains that the sheriff should have sustained his motion that there was no case to answer and acquitted him because his conduct lacked any public element.
[2] The charge of which the appellant was convicted was in these terms:
"On 7 January 2010 at 50 Kenilworth Avenue, Wishaw, (he) David Hatcher did conduct (himself) in a disorderly manner, shout, swear, place Lorraine Hatcher in a state of fear and alarm and commit a breach of the peace".
Lorraine Hatcher is the wife of the appellant. Their children aged 12 and 15 were in the house at the time, but in their respective bedrooms. The appellant and his wife had a blazing row in which the appellant was plainly the aggressor. The sheriff made the following findings:
1. The complainer is the wife of the appellant. They have been married for 23 years and have three children, two of whom aged 12 and 13 years, reside with them at home at 50 Kenilworth Avenue, Wishaw. They were in the house with the complainer and the appellant throughout the evening of 7 January 2010 and the early hours of 8 January 2010.
2. The complainer is a technical instructor in an occupational therapy department. The appellant is a teacher. On the evening of 7 January 2010 the complainer told the appellant of her intention to attend an outing with around 31 of her work colleagues for a meal at 5pm on a date shortly after 7 January 2010.
3. The appellant objected to her doing so because of an issue which had arisen when she (the complainer) attended an office party just before Christmas 2009. The appellant had at that time become upset, angry and apprehensive of her fidelity to him due to her meeting another man at that previous evening outing, despite the fact that she had openly told him about the situation and discussed it with him.
4. On 7 January 2010 the appellant persistently questioned the complainer over a period of hours about the further outing and about the original pre-Christmas outing. He became agitated and angry and refused to allow her to go to bed.
5. At points throughout the said period, the appellant shouted at the complainer and at one point called her a fucking whore, a fucking slut and a cunt. The appellant would not allow the complainer to remain in bed by pulling the bed clothes from the bed.
6. The complainer was genuinely upset and alarmed by the use of those words and the appellant's persistent questioning of her over several hours as well as his refusal to allow her to go to or remain in bed. The behaviour and conduct of the appellant throughout the period of several hours and late at night was likely to have caused serious fear and alarm to his 12 and 15 years old children present in the house. The conduct of the appellant was severe enough to cause alarm to an ordinary and reasonable person observing the same.
7. As a result of her upset and alarm at the appellant's behaviour, the complainer called police who attended.
8. The appellant behaved in a disorderly manner, shouted and swore at the complainer, placed her and highly probably their children in a state of fear and alarm and committed a breach of the peace.
There was plainly sufficient evidence to satisfy the first part of the test for breach of the peace, that is conduct which was genuinely alarming and disturbing to any reasonable person.
[3] In his submissions for the appellant Mr Shead was content, without conceding the point, to proceed...
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