Her Majesty's Advocate V. Mark Harris
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Carloway,Lord Justice General |
| Neutral Citation | [2010] HCJAC 102 |
| Court | High Court of Justiciary |
| Date | 08 October 2010 |
| Docket Number | XC136/10 |
| Published date | 08 October 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lady Paton Lord Carloway | [2010] HCJAC 102 Appeal No: XC136/10 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in BILL OF ADVOCATION by HER MAJESTY'S ADVOCATE Advocator; against MARK HARRIS Respondent: _______ |
Advocator: Mulholland, Q.C., Solicitor General; Crown Agent
Respondent: Shead; Capital Defence, Edinburgh
8 October 2010
Introduction
[1] The respondent has been charged on indictment before the Sheriff Court in Dundee. The sheriff after debate sustained preliminary pleas to the relevancy of a number of charges contained within that indictment. (He then proceeded to find the respondent not guilty of these charges; this latter disposal is acknowledged to have been taken in error.) The relevant charges are in the following terms:
"(4) between 14 July 2007 and 5 December 2007, both dates inclusive, you MARK HARRIS did conduct yourself in a disorderly manner, repeatedly send or cause to be delivered numerous letters and text messages to the said Nancy Renwick at Abercorn Street, Dundee or elsewhere to the prosecutor unknown and did thereby harass, annoy, intimidate and frighten her and thereby commit a breach of the peace;
(5) between 7 August 2007 and 9 August 2007, both dates inclusive at 107 Tay Street, Newport-on-Tay or elsewhere to the prosecutor unknown you MARK HARRIS did conduct yourself in a disorderly manner and repeatedly send communications to Lisa Renwick, Burness Solicitors, 120 Bothwell Street, Glasgow, to her alarm and distress, whereby she required to implement a block on any future communications from you and you did thereby commit a breach of the peace;
(7) between 11 and 15 August 2007, both dates inclusive at 107 Tay Street, Newport-on-Tay or elsewhere to the prosecutor unknown you MARK HARRIS did for the purpose of causing annoyance, inconvenience or needless anxiety to Nancy Renwick, c/o Tayside Police, Dundee persistently make use of a public electronic communications network in that you did repeatedly telephone said Nancy Renwick, conduct yourself in a disorderly manner and commit a breach of the peace;
(8) on 14 or 15 August 2007 at 107 Tay Street, Newport-on-Tay or elsewhere to the prosecutor unknown, you MARK HARRIS did conduct yourself in a disorderly manner, cause to be sent and did send to various persons at Burness Solicitors, 120 Bothwell Street, Glasgow numerous envelopes containing various items designed to cause distress and embarrassment to Lisa Renwick, all to her fear and alarm and distress and did thereby commit a breach of peace;
(9) on 10 September 2007 at Mobile World Track You Ltd, Blackwood Business Park, Ash Road South, Wrexham you MARK HARRIS did cause and arrange to be fitted to motor vehicle registration number NBR 78 a mobile tracking device without the knowledge or consent of said Nancy Renwick, registered keeper of said vehicle and on dates between 11 September 2007 and 20 October 2007, both dates inclusive, at Gallacher Retail Park, Dundee and at various locations in Scotland, you MARK HARRIS did conduct yourself in a disorderly manner, use the information provided by said device to follow said Nancy Renwick to various locations and make your presence known to her, all to her fear and alarm and commit a breach of the peace;
(10) between 11 September 2007 and 14 October 2007, both dates inclusive Between (sic) at 107 Tay Street, Newport-on-Tay or elsewhere to the prosecutor unknown, you MARK HARRIS did conduct yourself in a disorderly manner, obtain and fit or cause to be fitted, to the vehicle, registration number SG51 UCF, a mobile tracking device, for the purpose of harassment of the users of the vehicle, Nancy Renwick and Lisa Renwick, both c/o Tayside Police, Dundee to their fear and alarm and did thereby commit a breach of the peace;
(12) on 24 or 25 September 2007 at Parkland Oval, Crookston, Glasgow and on the A80 road, you MARK HARRIS did, having taken motor vehicle, registration number NBR 78, drive said motor vehicle on the A80 road through a section covered by an automatic speed camera at a speed in excess of the legitimate speed limit in order that the registered keeper of said vehicle would be pursued for an offence she did not commit, incur the financial penalty and licence penalty points to her annoyance and distress and you did this with intent to pervert the course of justice and did attempt to pervert the course of justice;
(13) on 5 November 2007 at Police Headquarters, Dundee you MARK HARRIS did during the course of various conversations, state to Gary Brown, Inspector, Tayside Police, Dundee, then engaged in the execution of his duty and in particular having been engaged in investigations in respect of you MARK HARRIS, that you had engaged a private investigator to obtain information about said Gary Brown and that you knew (a) where said Gary Brown resided; (b) where his mother resided; (c) details of a mortgage application pertaining to said Gary Brown, that you were getting close to said Gary Brown and would get closer still and you wanted to find out every single detail about said Gary Brown, and that you were interested in his mother and brother, all in a manner calculated to intimidate and threaten said Gary Brown in an attempt to stop him engaging in lawful investigations and you did this in an attempt to pervert the course of justice, and you did thus attempt to pervert the course of justice;
(14) on 5 December 2007 at Police Headquarters, Dundee you MARK HARRIS did during the course of various telephone conversations with Paul Romanowski, Detective Constable of Tayside Police, Dundee, then engaged in the execution of his duty, and having been engaged in investigations in respect of you, MARK HARRIS, state that you knew (a) where said Detective Constable resided; (b) where his mother worked; (c) where his father worked prior to his retirement; (d) personal details pertaining to said Detective Constable's brother; (e) that said Detective Constable played rugby for a particular team and (f) details of the amount of mortgage pertaining to said Detective Constable's house and did warn said Detective Constable to stay away from you and stay away from your bank manager and your business all in a manner calculated to intimidate and threaten said Paul Romanowski, in an attempt to stop him engaging in lawful investigations and you did this in an attempt to pervert the course of justice and you did thus attempt to pervert the course of justice."
[2] The Crown presented this Bill of Advocation complaining that the decision of the sheriff to uphold the pleas to the relevancy in respect of these charges was wrong and should be reversed. As indicated at the outset of the hearing, the complaint as regards charge (7) is no longer insisted upon.
[3] This is the second indictment which the respondent has faced in relation to the circumstances outlined in the charges. In the original indictment charges (13) and (14) were each libelled as a breach of the peace. The respondent's plea to the relevancy in respect of those charges was ultimately upheld on appeal by a full bench of this Court (Harris (No.1) v HM Advocate 2009 SLT 1078).
Background
[4] The complainer in charge (4) ("the first complainer") is the ex-partner of the respondent. The complainer in charge (5) ("the second complainer") is her daughter. The breakdown in the relationship between the first complainer and the respondent was acrimonious. The first complainer had obtained a non-harassment order in terms of the Protection from Harassment Act 1997 against the respondent. Interim interdicts were granted in her favour against the respondent on 20 July 2007 and 31 July 2007, with a final interdict being granted on 14 August 2007. According to the information provided to the sheriff by the procurator fiscal depute the interdict was in force between 20 July 2007 and 18 October 2007.
Submissions by the Solicitor General
Charges involving an attempt to pervert the course of justice
[5] The Solicitor General challenged the reasoning of the sheriff in holding that charges (12) -(14) were irrelevant. The crime of attempting to pervert the course of justice was not of recent origin: its genesis was found in the works of Hume and Alison (HM Advocate v Martin 1956 JC 1, per Lord Cameron at page 3). The offence covered a broad spectrum of behaviour (Hume, i, 366 et seq; Alison, i, 488). It was not restricted to the destruction of evidence (Waddell v MacPhail 1986 SCCR 593; Carney v HM Advocate 1995 JC 11; Johnstone v Lees 1994 SCCR 687; Dalton v HM Advocate 1951 JC 76; HM Advocate v Mannion 1961 JC 79). As regards charge (12), the course of justice began when the speeding offence was deliberately committed, resulting in a notice of intended prosecution being sent to the registered keeper of the vehicle. Charges (13) and (14) involved menacing statements to police officers: the circumstances were a fortiori of cases in which there had been witness intimidation (Carney v HM Advocate). Each of the charges involved a course of justice which had commenced, an actus reus by the respondent and an intent to interfere with that course of justice and was therefore relevant. Such charges had been anticipated in the respondent's previous appeal (Harris (No.1) v HM Advocate, per Lord Justice General Hamilton at para [26]).
Charges involving breaches of the peace
[6] The Solicitor General recognised that the conjunctive test for breach of the peace was now well-established (Smith v Donnelly 2002 JC 65, per Lord Coulsfield at para [17]; Harris (No.1) v HM Advocate, per Lord Justice General Hamilton at para [15]). However, the requisite public element of the offence was not absent merely because the conduct took place on private property. One had to assess whether there was a realistic risk of serious disturbance to the community were the behaviour discovered (McIntyre v Nisbet 2009 SCCR 506, per Lord...
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