James Poyner V. Procurator Fiscal, Glasgow

JurisdictionScotland
CourtHigh Court of Justiciary
JudgeLady Paton,Lord Brodie,Lord Philip
Neutral Citation[2013] HCJAC 94
Published date09 August 2013
Date09 August 2013
Docket NumberXJ931/12

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2013] HCJAC 94

Lady Paton Lord Brodie Lord Philip Appeal No: XJ931/12

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST CONVICTION

by

JAMES POYNER

Appellant;

against

PROCURATOR FISCAL,

GLASGOW

Respondent:

_______

Appellant: F Mackintosh; John Pryde & Co, Edinburgh

Respondent: A Brown QC, Advocate Depute; Crown Agent

9 August 2013

Introduction

[1] On 24 July 2012 the appellant was convicted in the Justice of the Peace Court, Glasgow, of the following offence:

"On 27 November 2010 at Royston Road, Baird Street Police Office and elsewhere in Glasgow you ... did conduct yourself in a disorderly manner shout, swear, utter threats of violence to police officers and commit a breach of the peace, you ... did commit this offence while on bail, having been granted bail on 13 October 2009 at Airdrie Sheriff Court."

[2] The appellant appeals against conviction. At page 9 of the Stated Case, one question is posed, namely:

"1. Was I entitled to repel the no case to answer submission?"

The evidence for the Crown
[3] In his Note, the justice set out the evidence led on behalf of the Crown as follows:

"On 27th November 2010 ... two police witnesses were on plain clothes duty travelling in an unmarked police vehicle on Royston Road, Glasgow just before 1100 hours. The weather was extremely cold with thick ice and snow, although the single carriageway road had been cleared. A large white van was double parked outside a newsagent shop in the road ahead of the police vehicle, and in order to overtake the van, vehicles had to drive into the opposing lane. When vehicles drove into the opposing lane then traffic in the opposing lane had to stop. DC McKenzie did consider the positioning of the large white van to be dangerous but neither officer accepted that the positioning of their vehicle to the offside of the large white van and in the centre of the carriageway posed any danger. The road was quite busy with traffic at the time and there were pedestrians in the vicinity.

The police vehicle drew up side by side with the van to tell the driver to move on so that the van would not obstruct the road. DC Cassidy was the passenger in the police vehicle and showed his warrant card to the appellant. He indicated that he was a member of CID and that the driver should wind down his van window, to allow conversation. The appellant looked away and did not comply with the request. The officer repeated the request when the appellant looked back. The appellant reacted angrily and retorted 'fuck off'. DC Cassidy described the appellant as 'extremely upset and angry'. The driver of the police vehicle leaned forward to see the person who was shouting and swearing. DC Cassidy tried to indicate that they only wanted the appellant to drive on, but the driver shouted over him with a torrent of abuse. DC McKenzie recalled the appellant shouting 'I know you are CID you fucking pricks'. The appellant said he had done nothing wrong and the police couldn't make him do anything. DC Cassidy heard the appellant shout 'Fuck off, I've done fuck all wrong'. He continued to be angry and aggressive. There was no apparent reason for the aggressive behaviour towards the polite and reasonable approach of the police. After half a minute or so the van had not moved and the appellant was still angry and aggressive.

Both officers approached the van to investigate why the appellant would not stop blocking the carriageway and was swearing loudly and aggressively. DC Cassidy arrived first at the driver's door. The appellant was agitated and made his way out of the van. DC Cassidy put a hand on the witness for his own safety and denied having dragged the appellant from the van. The appellant shouted 'Do you want a fucking square go?' directed at the police officers. He was still angry and unresponsive to the police requests.

He was cuffed and placed in the rear of the police vehicle, where he continued to shout and swear. He was told that if he calmed down then a fixed penalty would be issued for breach of the peace and he could go on his way. The appellant again shouted and swore at the officers and made threats of violence. He was then driven to Baird Street police office. He continued his aggressive behaviour and threats of violence during the few minutes drive to the police office. In the police office when cautioned and charged the appellant replied 'A breach of the peace is fuck all'.

...

I agreed with the respondent that the facts of Donaldson v Vannet and Harris v HMA should be distinguished from the instant case. Had the appellant removed himself and his van from the scene then this incident would not have arisen. To my mind the police were rightfully pursuing the matter of the van blocking the carriageway. When the appellant was unresponsive and abusive, shouting and swearing and failing to comply with a lawful request to move on and stop blocking the carriageway then it fell to the officers to pursue the matter. The place was a public road, outside a newsagent's at eleven o'clock in the morning, when the road was moderately busy...

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