Edith Jane King V. Procurator Fiscal, Dunoon
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Bonomy,Sheriff Principal Brian A Lockhart |
| Judgment Date | 2011 |
| Neutral Citation | [2011] HCJAC 109 |
| Court | High Court of Justiciary |
| Date | 27 October 2011 |
| Year | 2011 |
| Published date | 27 October 2011 |
| Docket Number | XJ502/11 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Bonomy Lord Brodie Sheriff Principal Lockhart | [2011] HCJAC 109 Appeal No: XJ502/11 OPINION OF THE COURT delivered by LORD BONOMY in BILL OF SUSPENSION by EDITH JANE KING Complainer; against PROCURATOR FISCAL, DUNOON Respondent: REFERENCE BY SCOTTISH CRIMINAL CASES REVIEW COMMISSION _______ |
Appellant: Kennedy; John Pryde & Co., Edinburgh
Respondent: Prentice, Q.C., A.D.
27 October 2011
The History of the Case
[1] On 30 August 2007 the complainer was convicted of racially aggravated conduct in the following terms:
"on 5 November 2006 at 13 Meadows Road, Lochgilphead, Argyll, you EDITH JANE KING did act in a racially aggravated manner which caused or was intended to cause alarm and distress to a person, namely Carla Jackson, born 18 September 1996, c/o Lochgilphead Police Office, in respect that you made racial comments which were derogatory to said Carla Jackson; contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 50A (1)(b) and (5)."
She was admonished. She was represented by Mr Murdanaigum, solicitor, at the trial and has continued to be represented by him throughout the proceedings.
[2] An application was made for a stated case. The case began to go off the rails at that stage. In his stated case the sheriff explained that one of the difficulties he had in stating the case was that the appeal seemed to be based on a misconception of what happened at the trial. Much of the application was based on a suggestion that the procurator fiscal depute had moved to amend the libel in the case to a common law charge of breach of the peace and whether there was sufficient evidence for such a charge. There was, however, no such motion. The motion was to amend the precise terms of the statutory charge. Although reference was made to the "mens rea" requirement for conviction, that was in the context of an amended charge of breach of the peace. The sheriff was, therefore, not invited to address the mens rea requirement for the statutory offence. Nevertheless the sheriff inevitably addressed the question of interpretation of the statute.
[3] The stated case was never finalised. Following a hearing on adjustments on 15 October 2007 it was deemed to be abandoned as the principal stated case was not transmitted to the clerk of justiciary within the relevant time limit of one week stipulated by section 179(9) of the Criminal Procedure (Scotland) Act 1995 ("1995 Act"). Intimation of abandonment was sent by Justiciary Office to the sheriff clerk in Dunoon on 16 January 2008.
[4] An application for an extension of time in which to lodge the principal stated case was presented to the High Court on 28 August 2008. In the application it was explained that Mr Murdanaigum had suffered a heart attack in September 2007 and had not returned to work until March 2008. That may well explain the failure to deal with the stated case properly. In that application it was accepted that the issue in the case had been wrongly identified in the original application for a stated case. It was proposed to lodge amended grounds of appeal focusing on the absence of evidence of mens rea sufficient to establish the charge under section 50A(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995. The application set out the proposed grounds in considerable detail, and was accompanied by a devolution minute to the effect that were the Lord Advocate to continue to support the conviction she would be acting in a way that was incompatible with the complainer's Convention rights under article 10 of the European Convention of Human Rights. By interlocutor dated 11 September 2008, Lord Carloway refused the application for an extension of time, commenting as follows:
"The proceedings in this case having been concluded in the Sheriff Court over a year ago and the appeal having been deemed abandoned as early as January last, no adequate explanation for the extreme delay is advanced, notwithstanding the reference to agent's illness. Despite the extensive narrative in the application, the basis for any appeal remains obscure. This was a straightforward case which the sheriff resolved satisfactorily."
[5] There matters rested until 2 August 2010 when application was made to the Scottish Criminal Cases Review Commission on behalf of the complainer for review of her conviction. In spite of some concern on the part of the Court about whether due consideration had been given by the Commission to the issues of finality and certainty in deciding that it was in the interests of justice to refer the case in June 2011, the Court resolved not to exercise the power recently conferred upon it to decline to accept the reference. Following procedural discussion it was determined that the appropriate form in which to address the issue was by bill of suspension. The bill was presented expeditiously following upon the court's interlocutor of 12 June 2011 and thereafter the case proceeded quickly to a hearing on 21 September 2011.
[6] The facts are best set out in the terms of the findings made by the sheriff in the draft stated case which were as follows:
"1. On 5th November 2006, the Appellant, Edith Jane King, spoke to Stuart Jackson on his mobile phone whilst he was at 13 Meadows Road, Lochgilphead.
2 During the course of that telephone conversation, Stuart Jackson called the Appellant a scoot. That is a derogatory term for travelling people.
3. Stuart Jackson's mobile phone was on loudspeaker mode. The loudspeaker had been activated before the Appellant came onto the phone. He did not tell the appellant that he had activated the loudspeaker facility on his mobile phone. The appellant was not aware that this had been anything other than a private conversation with her former partner [sic - Stuart Jackson was the former partner of Edith King's friend, Linda Holdsworth, from whose house the telephone call originated].
4. The appellant, in response to being called a scoot, stated words to the effect that at least her kids knew who their father was and were not a wee black Paki bastard. The appellant did not intend that this remark be audible to Carla Jackson.
5. All of the witnesses who heard the telephone conversation identified the voice as that of the Appellant.
6. This conversation, and these remarks, were heard by Carla Jackson.
7. Carla Jackson's father is of mixed parentage and, as a result, Carla Jackson has olive skin.
8. The uttering of these remarks by the Appellant caused alarm and distress to Carla Jackson, who was upset and crying."
On the strength of these findings the sheriff convicted the complainer in the terms narrated at the outset of this Opinion.
[7] In coming to the conclusion that there may have been a miscarriage of justice and referring the case to the Court, the Commission in their statement of reasons defined the issue as follows:
"48. The Commission considers that whether or not the applicant may have suffered a miscarriage of justice in her conviction under section 50A(1)(b) and (5) of the Criminal Law (Consolidation) (Scotland) Act 1995 depends on the interpretation the Court puts on that section in relation to whether or not it is a strict liability offence. In the applicant's case, it is argued on her behalf that she had no intention to offend the complainer, Carla Jackson, and had no knowledge that the latter was in a position to hear any remark which was made and be offended by it. In these circumstances there was a complete absence of mens rea which is an essential element of the commission of the offence."
The sheriff had put the matter this way in the draft stated case:
"The evidence in this case was in fairly short compass. The four Crown witnesses confirmed the contents of the telephone conversation between the appellant and Stuart Jackson. I was satisfied that the appellant had said the words complained of and had referred to Carla Jackson as a black Paki bastard. I was also satisfied that this caused alarm and distress to Carla Jackson.
The Note of Appeal seems to suggest that because this was a conversation between the appellant and Stuart Jackson, the appellant did not possess the necessary mens rea for a common law breach of the peace. This was not a charge involving a common law breach of the peace. It is suggested that the appellant did not intend to provoke a public disturbance or that she was aware or would reasonably have been expected to be aware (sic) that the complainer might overhear the offending remark. However, the Act makes it clear that if a person acts in a manner which causes alarm to another person that is sufficient. In my opinion, it is of no moment that the appellant was unaware that Carla Jackson would hear what was being said. The fact is that Carla Jackson did hear what was being said and that caused her alarm and distress. That was made perfectly clear in the evidence. This is not a breach of the peace charge. This is a statutory offence and it seems to me clear that the appellant's actions satisfy the definition in the charge. I therefore found the appellant guilty of the amended libel."
[8] From an early stage in the discussion before us it was clear that the choice was not between an offence of strict liability and one involving mens rea, but rather that the issue was what the mens rea requirement was for conviction on the charge. The answer to that question is a matter of statutory construction.
[9] The relevant parts of section 50(A) of the Criminal Law (Consolidation) (Scotland) Act 1995 are these:
"Racially - aggravated harassment
50A.-(1) A person is guilty of an offence under this section if he-
(a) pursues a racially-aggravated course of conduct which amounts to harassment of a person and-
(i) is intended to amount to harassment of that person; or
(ii) occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person; or
(b) acts...
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