Jones v Carnegie
| Jurisdiction | Scotland |
| Judgment Date | 04 May 2004 |
| Neutral Citation | 2004 SCCR 361 |
| Date | 04 May 2004 |
| Docket Number | No 15 |
| Court | High Court of Justiciary |
JC
LJ-G Cullen, Lord MacLean, Lord Macfadyen, Lady Cosgrove and Lord Sutherland
Procedure - Summary procedure - Charge of breach of the peace - Conduct consisting disorderly behaviour - No evidence of actual harm or distress - Test to be applied - Whether objective or subjective test to be applied - Whether a breach of the peace
Procedure - Summary procedure - Charge of breach of the peace - Conduct consisting disorderly behaviour - Whether conduct disorderly - Context in which the conduct took place - Whether a breach of the peace
Procedure - Summary procedure - Charge of breach of the peace - Peaceful protest - European Convention of Human Rights and Fundamental Freedoms, Arts 10, 11 - Whether breach of human rights - Preventing disorder - Actions taken in pursuit of a legitimate aim - Whether a breach of the peace
Procedure - Summary procedure - Charge of breach of the peace - Lack of specification in charge - European Convention of Human Rights and Fundamental Freedoms, Art 6(3)(a) - Whether charge lacked specification - Whether breach of human rights
Procedure - Summary procedure - Charge of breach of the peace - Conduct consisting disorderly behaviour - Accused subject to bail order - No evidence as to why complainer reacted in such a way - Accused some distance apart - Accused responded to police request - Whether a breach of the peace
Procedure - Summary procedure - Charge of breach of the peace - Conduct consisting disorderly behaviour - Neighbourly dispute - Minor matter - Conduct causing alarm and distress - Breakdown in peace of the community - Whether a breach of the peace
Article 7(1) of the European Convention on Human Rights provides: 'No one shall be 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.'
In Smith v DonnellySC 2002 JC 65 the court rejected an argument that the test for breach of the peace had been developed and expanded to the extent that it was meaningless and incompatible with Art 7 of the European Convention on Human Rights.
In Lucas v United Kingdom Application No 39013/2 the court held that the definition of the crime of breach of the peace inSmith v Donnelly was sufficiently precise. The court noted that the test employed the standard of conduct which was genuinely alarming or disturbing to any reasonable person.
In these appeals against conviction for breach of the peace a number of questions were raised as to the correctness of the application of the decision of the court in Smith v Lees.
The first appellant (Jones) was convicted of a breach of the peace in that she conducted herself in a disorderly manner, sitting on the south approach roadway to Helensburgh naval base while mechanically fastened to a wheelchair and refusing to desist when required to do so. It was not in dispute that the demonstration was peaceful and that the appellant was not hostile or threatening.
The first appellant argued that whilst the test for breach of the peace had been correctly applied, the decision in Smith v Donnelly had wrongly held that there did not require to be evidence of actual alarm and as a consequence the court had had to decide whether in light of the evidence, the conduct of the appellant had been hypothetically alarming. If the law was as it was stated inSmith v Donnelly a person would be unable to know that his conduct might have been 'genuinely alarming or disturbing' since that would depend on the view of the court. The court should have adopted a subjective rather than an objective test of what was genuinely alarming and disturbing.
Held that: (1) the submission had not been well founded on authority (para 10); (2) the conduct should have been serious enough to cause alarm (para 11); (3) the adoption of an objective test had been acceptable having regard to Art 5 of the European Convention of Human Rights as the test was sufficiently precise have been consistent with the article (para 12); and appealrefused.
Observed that: (1) where the conduct complained of took place in private, there required to be evidence that there was a realistic risk of the conduct being discovered (para 12); (2) if the crime of breach of the peace were to be limited to cases in which there was evidence of actual alarm or annoyance this would represent an unfortunate and unjustifiable narrowing of the common law (para13); (3) the safeguard against any undue expansion of the law was provided by the need for the conduct to be genuinely alarming or disturbing to any reasonable person (para 13); (4) the adoption of a subjective test would not provide a satisfactory basis for the law because even if there were evidence of alarm this would not be conclusive. Conversely the protection of the neighbourhood against breach of the peace should not be inhibited merely because a bystander displayed an over-stoical reaction to the conduct in question.
The second appellant (Tallents) was convicted of conducting herself in a disorderly manner in the gallery of the Scottish Parliament chambers in Edinburgh. She had tied and bound herself to a railing, sung and fallen to the ground when approached by officials. She had refused to walk away, whereby others were required to lift and physically remove her from the premises. Her protest lasted some ten to fifteen minutes. The appellant accepted her conduct was intended to, and did, disrupt the proceedings of the Parliament.
The second appellant argued that there had been no breach of the peace because her conduct was not such as to cause alarm to ordinary people and threaten serious disturbance or give rise to any reasonable likelihood of this happening. It was a peaceful protest with no evidence of violence or struggle. It was argued that there had to be evidence from which an inference could reasonably have been drawn of the likelihood of public disorder and that called for the application of a high test. It was accepted that the police were entitled to eject the second appellant who did not persist in her conduct and adopted a purely passive attitude. In the absence of 'actual alarm' the conduct had to be 'flagrant' which created a real likelihood of serious disturbance.
It was further argued by the second appellant that her prosecution and conviction was in breach of her rights under Art 10 (freedom of expression) and Art 11 (freedom of assembly) of the European Convention on Human Rights because they were not shown to have been justified. That being so the prosecution of the second appellant wasultra vires under sec 57(2) of the Scotland Act 1988.
Held that: (1) the sheriff had been correct to convict the appellant of a breach of the peace (para 25); (2) the question whether certain conduct had been genuinely alarming and disturbing depended on the context in which it had taken place, and consequently depended on the place, time and circumstances in which it had occurred (para 25); (3) the conduct of the appellant had interrupted and disturbed not only what had been said and heard in the Parliament but also the good order which had been expected to have been observed while a legislature was in session (para 26); (4) the sheriff had been entitled to conclude that her conduct had been of such a nature as to have been likely to provoke a reaction of alarm and disturbance among reasonable people (para 26); (5) whilst the appellant's prosecution and conviction had constituted an interference with her rights to freedom of expression and assembly these actions had been in accordance with and prescribed by the law and had been properly regarded as pursuing the interest of preventing disorder as set out in Art 10(2) (para 27); appealrefused.
Observed that the actions taken against the appellant had not constituted a general interference with her freedom to express her views but had related solely to the context and manner in which she chose to do so.
The third appellant (Barrett) was convicted of conducting herself in a disorderly manner by sitting on a road at a roundabout and refusing to desist when requested to do so. A peaceful protest had taken place at the entrance to the naval base at Coulport when police required demonstrators to move away from the main entrance gate so that normal access to and from the base could be restored. The appellant sat on the roadway and had to be moved by police. The third appellant emphasised the evidence of the police witnesses that they did not see any traffic being held up, that traffic was being directed to another entrance and there was no evidence as to when that main gate was to be reopened for traffic to resume using that entrance. It was argued that the conduct complained of was not such as to cause alarm to ordinary persons and to threaten serious disturbance to the community. There was no evidence of actual alarm, upset or annoyance and it was not enough that conduct could irritate, annoy, upset or arouse disapproval or concern. Moreover it was argued that the action taken against the third appellant interfered with her rights to freedom of expression and peaceful assembly.
The Solicitor General argued that whilst the protest had been a peaceful one there had been deliberate intention to disrupt traffic otherwise it would have been sufficient for the protestors simply to hand out leaflets and display a banner. In the circumstances it was conduct which could reasonably produce alarm leading to the breaking up of the social peace. Moreover the Solicitor General questioned what would have happened if the third appellant had been permitted to persist in the conduct which was complained of. It was emphasised that whether conduct should be regarded as provocative depended upon the circumstances in which it occurred.
Held that: (1) whilst there had been no evidence of traffic having been obstructed the demonstrators had been persisting in a course of...
To continue reading
Request your trial
-
David Hatcher V. Procurtor Fiscal Hamilton
...of the same event". [9] As well as referring to Paterson, the learned sheriff relied on the opinion of the Full Bench in Jones v Carnegie 2004 JC 136, 2004 SCCR 361, 2004 SLT 609 to support his rationale for holding that the evidence was sufficient, which he expressed in these terms. "Other......
-
Alexander Allan Bowes V. Procurator Fiscal, Aberdeen
...571; 2009 GWD 5-78 Harris v HM AdvocateSCUNK [2009] HCJAC 80; 2010 JC 245; 2009 SLT 1078; 2010 SCCR 15; 2010 SCL 56 Jones v CarnegieSCUNK 2004 JC 136; 2004 SLT 609; 2004 SCCR 361 Lucas v UKHRC (2003) 37 EHRR CD 86; [2003] Po LR 150 MacDougall v DochreeSCUNK 1992 JC 154; 1992 SLT 624; 1992 S......
-
Stewart Robertson+stephen Gough V. Her Majesty's Advocate
...(1999) 27 EHRR CD 272). The law of contempt merely restricts his right to express that view in his chosen manner (Jones v Carnegie, 2004 JC 136, at para [27]). If he seeks to express the view that an individual has the right to be naked at all times and in all places, there is nothing to pr......
- Douglas Miller Harris V. Her Majesty's Advocate
-
Let the Stalker Beware? Analysis of the Law of Stalking in Scotland
...on Human Rights which requires that offences are clearly defined in law and that applies to common law crimes. 25 Jones v Carnegie 2004 SLT 609. 410 Let the Stalker Beware? Analysis of the Law of Stalking in a one-to-one basis by letter, telephone or electronic means where the stalker and h......