Improper, Imprudent and Important: Reflecting on Breach of the Peace after McConachie v Shanks

Author
Date01 September 2019
DOI10.3366/elr.2019.0582
Published date01 September 2019
Pages434-441
INTRODUCTION AND FACTS

“[I]t didn't seem right”, one witness recalled, that when alighting from a bus sixty-five-year-old Douglas McConachie placed a ticket with his address and phone number written across it atop a gym bag rested upon the lap of a twelve-year-old boy. As the bus drew away the appellant further gestured, suggesting the boy phone him. McConachie had spent the preceding journey smiling and winking intermittently at the complainer who was left feeling “stressed and uncomfortable” as he continued the rest of his trip home from school. At first instance, McConachie was convicted of breach of the peace at common law. That conviction was quashed on appeal in the recent case of McConachie v Shanks,1 where the court endorsed the observation in Angus v Nisbet 2 that not all imprudent and inappropriate conduct between strangers will be criminal by reference to the law of breach of the peace.3

This note supplements and extends current thinking about breach of the peace by situating McConachie amongst related cases where the conduct complained of allegedly presents harm to a child or children. It argues that the reasoning in McConachie reflects the changing role of the “public element” in the offence. Resultantly, the test for breach of the peace at common law in cases involving what might be broadly understood as “child protection” is now closer to that of its sister offence contained in section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.

OFFENCE OVERVIEW General Definition

The common law offence of breach of the peace has undergone reform throughout the past two decades.4 In 2001, Smith v Donnelly 5 held that breach of the peace required that conduct be both:

severe enough to cause alarm to ordinary people; and

threaten serious disturbance to the community.6

Whether conduct was genuinely alarming to an ordinary person and potentially disturbing to the community would depend on an assessment of it in its context from the perspective of any reasonable person.7
The Private Problem

Of note amongst the many additional observations made in Smith was that statements said in private were unlikely to fall within the scope of the offence no matter how unpleasant or disgusting they were.8

Nine years later, the full-bench decision in Harris v HM Advocate 9 affirmed that breach of the peace must have a public element and did not, therefore, apply to private conduct.10 No definitive guidance was given as to what might constitute a public element and mark the boundary between public and private. However, in Harris, objectively alarming statements made by the appellant to police officers while they were in a police station on two separate occasions in person and via telephone lacked the necessary public element and were thus private.

Relying on Harris, the court in Hatcher v Harrower 11 found the appellant had not committed a breach of the peace in shouting and swearing at his wife in a “blazing row”.12 While the children of the complainer and appellant were present in the house they were not “the community”: they had been in their respective bedrooms, possibly unaware of what had happened.13 The community was therefore not threatened. Without a public element, the court acknowledged that conduct that caused “upset and distress” to reasonable people in private would not fall within the scope of the offence. It would be a matter for the Scottish Parliament to legislate on such behaviour.14

STATUTORY DEVELOPMENTS

Following Harris, sections 38 and 39 of the Criminal Justice and Licensing (Scotland) Act 2010 were enacted.15 The former criminalises threatening or abusive behaviour that would be likely to cause a reasonable person to suffer fear or alarm when undertaken intentionally or recklessly. The latter creates the offence of stalking. Neither require a “public element” be satisfied for a complete offence and are therefore designed to address the perceived lacuna in the law following Harris.

BREACH OF THE PEACE AND CHILDREN

Since Smith, there have been a number of cases of breach of the peace involving conduct that allegedly poses harm to a child or children.

<italic>Literal</italic> Community

Seven months after delivering the opinion of the court in Smith, Lord Coulsfield delivered another in Borwick v Urquhart. 16 Borwick, a man of twenty-eight, had hosted a party where all other attendees were females between the age of thirteen and seventeen.17 The complainer, aged...

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