In Stated Case Bty A.m. Against The Procurator Fiscal, Kilmarnock
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Drummond Young,Sheriff Principal Mhairi Stephen |
| Neutral Citation | [2015] HCJAC 7 |
| Docket Number | HCA/2014-004521-XJ |
| Date | 28 January 2015 |
| Published date | 10 February 2015 |
| Court | High Court of Justiciary |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 7
HCA/2014-004521-XJ
Lord Brodie
Lord Drummond Young
Sheriff Principal Stephen QC
OPINION OF THE COURT
delivered by LORD BRODIE
in
STATED CASE
by
A M
Appellant;
against
THE PROCURATOR FISCAL, KILMARNOCK
Respondent:
Appellant: S McCall; John Pryde & Co, SSC, Edinburgh (for Levy & McRae, Glasgow)
Respondent: Erroch AD; Crown Agent
28 January 2015
[1] On 5 September 2014 the appellant was convicted after trial in the Justice of the Peace Court of a charge in the following terms:
“on 22 May 2013 at [J Road] and [C Street] and elsewhere….you [AM] did conduct yourself in a disorderly manner and within a motor vehicle follow [A] and [B], place them in a state of fear and alarm for their safety and commit a breach of the peace”.
The appellant was admonished.
[2] At trial, at the close of the evidence for the prosecution, a submission had been made on behalf of the appellant in terms of section 160 of the Criminal Procedure (Scotland) Act 1995 that she had no case to answer. The Justices rejected that submission. At a previous diet, on 16 April 2014 a plea to the competency of the charge had been debated and repelled.
[3] The appellant appeals her conviction by way of stated case. The questions submitted for the opinion of the court are:
“1. Did we apply the correct test in determining the no case to answer submission?
2. On the basis of our findings in fact, was there sufficient evidence to convict the accused of breach of the peace?”
[4] The findings in fact made by the Justices, insofar as relevant to the questions in the stated case, are as follows:
“1. The accused…lives with her husband and three sons at the address on the complaint…Her sons attend [the local primary school].
2. On 22 May 2013 a book fair took place at [the local primary school] between 3 and 4pm. The accused attended the book fair shortly after 4pm with her sons. The book fair was staffed by two classroom assistants from the school [B] and [A]. Shortly after 4pm an altercation took place at the location of the book fair, which resulted in the two classroom assistants feeling it necessary to alert management at the school to the incident.
3. Sometime between 3.15pm and 4.30pm the accused and her children left the school. They made [for] the family car …which was parked in [J Road] and got into it. The accused was driving the car.
4. Sometime between 4.15pm and 4.30pm [B] and [A] left the school on foot entering on to [C Street]. On exiting the school, they turned right towards [J Road].
5. As the witnesses were walking across the school playground from north to south, the accused was driving her car in the same direction, on [J Road], which runs approximately parallel to the route the witnesses were taking.
6. The witnesses began to walk westwards along [C Street]. As they did so the accused’s car reached a crossroads of [C Street] and [J Road]. The accused had right of way, but stopped to allow a car exit from [C Street] on to [J Road]. The speed limit at [C Street] and [J Road] is 20mph. There were traffic calming measures in place including a raised junction, speed humps, ’SLOW’ markings on the road and ‘School’ signage.
7. The accused then turned left on to [C Street] and began travelling eastwards. The witnesses were already on [C Street] walking westwards. Both parties were now travelling towards each other, each at around walking pace.
8. The accused drove past the witnesses, then through a car park at the sports centre, exiting back to [C Street], this time facing west, the same direction as the witnesses. The accused proceeded along [C Street] and passed the witnesses. The accused then turned left on to [J Road] then left the area. Both witnesses were alarmed by the accused’s behaviour. [B] was also very anxious and frightened. [A] was uncomfortable and intimidated, and felt scared.”
[5] The Justices record in the stated case that following their rejection of the submission of no case to answer, the appellant gave evidence. The Justices found much of that evidence to be unreliable and not credible. Where the appellant’s evidence conflicted with the evidence of the witnesses for the Crown, the Justices preferred the evidence of the Crown witnesses.
[6] In the course of the respective submissions under reference section 160 of the 1995 Act, the Justices were referred to the following authorities: Smith v Donnelly 2001 SCCR 800, HMA v Greig 2005 SCCR 465, McGuiness v Brown 2013 SCCR 442 and Hay v HMA 2012 SLT 569.
[7] We turn to the two questions in the stated case and, first, the question as to whether the Justices applied the correct test when determining the no case to answer submission. On behalf of the appellant Ms McCall drew attention to the following passage in the stated case:
“We are aware that there has been a large overlap in the legal argument put forward during the defence case to the court at various stages in the proceedings. Initially when the preliminary point was raised, the court’s role was to consider is there any situation whereby ‘conduct yourself in a disorderly manner and within a motor vehicle follow (two people) and place them in a state of alarm for their safety’ could be a breach of the peace. After the section 160 submission, where the test changes and what we need to consider is; if we believe everything that we have heard in evidence, is there a sufficiency of evidence to say that it falls within the behaviour alleged in the libel, which has established can amount to a breach of the peace”.
Ms McCall submitted that in that passage the Justices disclosed that what they had done in considering the evidence was to determine whether what had been libelled had been spoken to in evidence and not whether what had been spoken to might meet the two-part test of what amounts to a breach of the peace.
[8] The test for determining a submission of no case to answer in terms of section 160 of the 1995 Act is whether the evidence led by the prosecution is sufficient in law to justify the accused being convicted of the offence charged. At this stage the case is to be taken at its highest for the Crown, it is to be assumed that the evidence led will be accepted and that any inferences available from that evidence which are favourable to the prosecution case will be drawn. Having considered the terms of the stated case, we are in no doubt that the Justice understood that. The suggestion on behalf of the appellant is that by referring to what was charged as being a crime known to the law of Scotland, when delivering their decision in respect of the section 160 submission, the Justices were indicating that what they had considered was the relevancy of the charge or perhaps whether what was libelled had been spoken to in evidence and not the sufficiency of the evidence led. The Justices report that what was said when announcing the decision on the section 160 submission was:
“We considered matters very carefully. We have been informed of matters in this court on 16 April 2014. Consequently we do...
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Milne and Others v Procurator Fiscal
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