HM Advocate v Harris (No 2) [Appeal Court, High Court of Justiciary]
| Jurisdiction | Scotland |
| Judgment Date | 08 October 2010 |
| Neutral Citation | [2010] HCJAC 102 |
| Docket Number | No 16 |
| Date | 08 October 2010 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Justice-General (Hamilton), Lady Paton, Lord Carloway
Justiciary - Crime - Attempt to pervert the course of justice - Driving car through a section of road covered by an automatic speed camera at a speed in excess of the legitimate speed limit in order that the registered keeper would be pursued for an offence she did not commit - Making statements to police officers engaged in investigations about certain personal information relating to the police in a manner calculated to intimidate and threaten police in an attempt to stop their investigations - Whether attempt to pervert the course of justice - European Convention on Human Rights and Fundamental Freedoms, Art 7
Justiciary - Crime - Breach of the peace - Public element - Serious disturbance to the community - Sending communications to an individual - Sending to various persons at their place of business items designed to cause distress and embarrassment to another individual working there - Fitting a mobile tracking device to a car to harass the users of the vehicle - Fitting a mobile tracking device to a car and using the information provided by the device to follow the car user and make presence known to her - Whether breach of the peace
Article 7 of the European Convention on Human Rights and Fundamental Freedoms provides, "1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations."
The respondent was charged on an indictment containing, inter alia, certain charges of breach of the peace (charges 4, 5, 8, 9 and 10) and of attempting to pervert the course of justice (charges 12, 13 and 14). Charge 4 alleged that the respondent repeatedly sent numerous letters and text messages to his former partner, NR. Charge 5 alleged that he repeatedly sent communications to LR, NR's daughter, at her place of business, a firm of solicitors. Charge 8 alleged that he sent to various persons at LR's place of business numerous envelopes containing various items designed to cause distress and embarrassment to LR. Charge 9 alleged that he fitted a mobile tracking device to NR's car without her knowledge or consent and used the information provided by the device to follow NR and make his presence known to her. Charge 10 alleged that he fitted a mobile tracking device to a car for the purpose of harassment of the users of the vehicle, NR and LR. Charge 12 alleged that he drove NR's car through a section of a road covered by an automatic speed camera in excess of the legitimate speed limit in order that NR would be pursued for an offence she did not commit, incur financial penalty and licence penalty points to her annoyance and distress. Charges 13 and 14 alleged that he stated to police officers engaged in investigations in respect of him that he knew certain personal information about them in a manner calculated to intimidate and threaten them, in an attempt to stop them investigating him. After debate the sheriff sustained preliminary pleas to the relevancy of the charges. The Crown presented a bill of advocation. The Crown argued that the charges of breach of the peace had the potential to threaten serious disturbance to the community, perhaps prompting others to take the law into their own hands. The Crown argued that the crime of attempting to pervert the course of justice was not of recent origin, the offence covered a broad spectrum of behaviour and was not restricted to the destruction of evidence. The respondent argued that the breach of the peace charges lacked the requisite public element and were unlikely to cause individuals to take the law into their own hands. He argued that there was no crime of perverting the course of justice at common law, but if the crime did exist it was narrowly defined and involved the destruction or concealment of evidence. He argued that the charges amounted to an unwarranted development of the crime of attempting to pervert the course of justice, were in breach of Art 7 of the Convention and were ultra vires of the powers of the Lord Advocate.
Held that: (1) the crime of breach of the peace involves two elements: conduct (i) severe enough to cause alarm to ordinary people and (ii) which threatens serious disturbance to the community; these requirements are conjunctive (para 19); (2) the threat of serious disturbance to the community means that communication at a distance of a message which passes wholly privately between individuals cannot, without more, be a relevant foundation for a breach of the peace; there was nothing to suggest that the communications referred to in charge 4 were seen or were likely to be seen by any person other than the respondent and the complainer, until at least they were reported to the authorities; charge 5 was essentially of sending communications which were distressing to the recipient and there was no element of disturbance to the community; in charge 8 the communications were alleged to have been sent to various persons at the firm of solicitors where LR was employed and it was averred that they were designed to cause distress and embarrassment to LR and did cause her fear and alarm and distress, and the charge was not irrelevant (paras 20, 21); (3) charge 10 involved only the fitting of the tracking device, and although the vehicle to which it was fitted was presumably thereafter driven on the public roads, there was nothing to suggest that alarm or distress was thereby caused or was likely to be caused to anyone other than the complainers on discovery that the device had been fitted; in charge 9 it was averred that the information provided by the device was used by the respondent to follow the complainer to various places and make his presence there known to her, and the particular circumstances in which these events occurred in public places might or might not amount to a breach of the peace and charge 9 was not irrelevant (para 22); (4) attempting to pervert the course of justice is, and has been since long prior to the advent of the Convention into Scots law, a crime in this jurisdiction; while its instances may be various, it is, with its close relationship to the due administration of criminal justice, sufficiently clear to withstand any Convention challenge based on imprecision or uncertainty; the court is, consistently with Art 7 of the Convention, entitled to elucidate and clarify the law in different but foreseeable circumstances; and attempting to pervert the course of justice can foreseeably take a number of forms and is not limited to cases in which there is an attempt to destroy evidence (paras 28-30); (5) charges 13 and 14 clearly envisaged that in each case a course of justice was in train and that in the course of each of them the respondent took various steps in an attempt to stop them and the charges were relevant; in charge 12 if it was established that the respondent deliberately set in train events designed falsely to incriminate the complainer, there was no reason why that should not constitute an attempt to pervert the course of justice (para 31); and bill of advocation passed and charges 4, 5 and 10 dismissed as irrelevant and case remitted to the sheriff to proceed to trial on the remaining charges.
Mark Harris was charged on an indictment at the instance of the Right Honourable Elish F Angiolini QC, Her Majesty's Advocate, the libel of which set forth, inter alia, two offences of breach of the peace in respect of behaviour allegedly directed towards two individual police officers. He tendered pleas of not guilty and took a plea to the relevancy of those charges. The plea came to call at the sheriff court in Dundee before a sheriff (AJM Duff), on 26 February 2009, when the plea to the relevancy was repelled. He appealed to the High Court of Justiciary. The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Hamilton), Lord Nimmo Smith, Lady Paton, Lord Carloway and Lord Clarke, for a hearing on 21 and 22 July 2009. On 22 July 2009 the appeal was allowed (Harris v HM AdvocateSC [2009] HCJAC 80; 2010 JC 245).
Harris was served with a fresh indictment at the instance of the Right Honourable Elish F Angiolini QC, Her Majesty's Advocate, the libel of which set forth, inter alia, offences of breach of the peace and attempting to pervert the course of justice. Two of the charges of attempting to pervert the course of justice dealt with the same subject-matter as the breach of the peace charges which had been held to be irrelevant in Harris v HM Advocate. The respondent took a plea to the relevancy of the charges of breach of the peace and attempting to pervert the course of justice. The cause called in the sheriff court at Dundee before a sheriff (DCW Pyle) for a debate on 19 and 20 January 2010. On 21 January 2010 the sheriff sustained the pleas to the relevancy of the charges. The Crown sought recall of the sheriff's decision by bill of advocation.
Cases referred to:
Advocate (HM) v MannionSCUNK 1961 JC 79; [1962] Crim LR 775
Advocate (HM) v MartinSC 1956 JC 1; 1956 SLT 193
Advocate (HM) v Rae and Little (1845) 2 Brown 476
Allison v HM AdvocateUNK [2010] UKSC 6; 2010 SC (UKSC) 19; 2010 SLT 261; 2010 SCCR 277; 2010 SCL 452; [2010] HRLR 16
Bowes v Frame sub nom Bowes v McGowanSCUNK [2010] HCJAC 55; 2010 JC 297; 2010 SLT 683; 2010 SCCR 657; 2010 SCL 761
Carney v HM AdvocateSC 1995 JC 11; 1995 SLT 1208
Dalton v HM AdvocateSC 1951 JC 76; 1951 SLT 294
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