Margaret Catherine Jones+jane Tallents+gaynor Barret+frank Jane Carberry+john Park V. Procurator Fiscal, Helensburgh
| Jurisdiction | Scotland |
| Judge | Lady Cosgrove,Lord MacLean,Lord Macfadyen,Lord Sutherland,Lord Justice General |
| Court | High Court of Justiciary |
| Date | 04 May 2004 |
| Docket Number | XJ264/03 |
| Published date | 06 May 2004 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord MacLean Lord Macfadyen Lady Cosgrove Lord Sutherland
| Appeal Nos: XJ264/03 XJ266/02 XJ1102/03 XJ1101/03 XJ271/02 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEALS by STATED CASE in the causes (1) MARGARET CATHERINE JONES Appellant; against PROCURATOR FISCAL, Dumbarton Respondent; (2) JANE TALLENTS Appellant; against PROCURATOR FISCAL, Edinburgh Respondent; (3) GAYNOR BARRET Appellant; against PROCURATOR FISCAL, Helensburgh Respondent; (4) FRANK JAMES CARBERRY Appellant; against PROCURATOR FISCAL, Kilmarnock Respondent; and (5) JOHN PARK Appellant; against PROCURATOR FISCAL, Aberdeen Respondent: _______ |
Appellant (1): Jackson Q.C., McKenzie; McClure Collins
Appellant (2): Scott Q.C., Hood; McCourts
Appellant (3): Ogg, Solicitor Advocate; McCusker McElroy & Johnstone
Appellant (4): Shead, Meehan; Balfour & Manson
Appellant (5): Brown; George Mathers & Co
Respondent: Solicitor General; Balfour; Crown Agent
4 May 2004
[1]In these appeals against conviction for breach of the peace a number of questions have been raised as to the correctness, or of the application, of the decision of the court in Smith v. Donnelly 2002 J.C. 65. Accordingly, the appeals have been heard by a court of five judges.
[2]In Smith v. Donnelly the court was concerned with an argument that the test for breach of the peace had been developed and expanded to the extent that it was meaningless and consequently incompatible with Article 7 of the European Convention on Human Rights. In rejecting that argument the court held that none of the later decisions had attempted to redefine or to modify the statements of the nature of the crime in Ferguson v. Carnochan (1889) 16 R. (J) 93; 2 White 278 or in the other decisions which had been cited. The court stated, by reference to Ferguson v. Carnochan that "what is required, therefore, it seems to us, is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person" (paragraph 17). The court considered that this interpretation was supported by the fact that, as Lord Justice General Clyde pointed out in Young v. Heatly 1959 J.C. 66 at page 70, if there is no evidence of actual alarm, the conduct must be "flagrant" if conviction is to be justified. The court added:
"'Flagrant' is a strong word and the use of that word points to a standard of conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances" (paragraph 18).
The court went on to observe, inter alia, that a recurrent theme in past decisions was that a robust approach had been taken to the use of bad language and to refusal to co-operate with the police, even if forcefully or even truculently stated (paragraph 20).
[3]The decision in Smith v. Donnelly was followed by the decision of the European Court of Human Rights on admissibility in Lucas v. United Kingdom No. 39013/02, on 15 March 2003. The court held that the definition of the crime of breach of the peace in Smith v. Donnelly was sufficiently precise to provide reasonable foreseeability of actions which might fall within its scope. The court noted that the test employed the standard of conduct which was genuinely alarming and disturbing to any reasonable person. In Lucas v. United Kingdom the accused was convicted of breach of the peace and fined £150. She participated in a peaceful demonstration at the naval base at Faslane. The police had told demonstrators to move and warned them that, if they failed to do so, they would be committing a breach of the peace. The accused had been warned personally by two police officers that she would be arrested if she did not move from the road. She refused to do so and was arrested. The justice by whom she was convicted considered that her actions caused traffic to be disrupted, that her actions were intended to cause such disruption and that she failed to desist when requested. He also found that her conduct in being part of a large protest intending to block the public road would be alarming or seriously disturbing to any reasonable person in the particular circumstances. Her conduct in disrupting the traffic could reasonably have been expected to cause any person who observed it, including car drivers, to be alarmed, upset or annoyed and provoke a disturbance.
The appeal of Margaret Catherine Jones
[4]She was convicted of breach of the peace and fined £120 on a charge which alleged that at the south approach road to a naval base at Helensburgh, while acting with others, she conducted herself in a disorderly manner, sat on the roadway while mechanically fastened to a wheelchair and refused to desist when required to do so. According to the findings made by the justice in this case, Ministry of Defence police officers found a number of persons locked together by mechanical means across the road and blocking the traffic. The appellant was sitting on the public road, mechanically linked to a wheelchair by means of a U-lock. She was part of the crowd of persons who were halting the flow of traffic. One of the police officers asked her to desist from her behaviour, and to remove herself from the roadway. She was warned that she would be arrested for breach of the peace if she refused to desist. When she did not do so she was arrested and charged with breach of the peace. It is not in dispute that, according to the evidence, the demonstration was peaceful and that the appellant was not hostile or threatening. The intention of the appellant and the other protesters was to block the base so as to prevent workers from entering or leaving it.
[5]For the appellant Mr. Jackson accepted that the justice had correctly applied the decision in Smith v. Donnelly. However, he submitted that the decisions in Smith v. Donnelly, Rafaelli v. Heatly 1949 J.C. 101 and Young v. Heatly had wrongly held that there did not require to be evidence that persons were actually alarmed by the conduct complained of. As a consequence the justice had had to decide whether, in the light of the evidence given by the police officers, the conduct of the appellant was hypothetically alarming.
[6]In support of his submissions Mr. Jackson founded on a passage in the Opinion of Lord M'Laren in Ferguson v. Carnochan, as reported in 2 White at pages 281-282. Dealing with persons engaging in hostilities, he observed that it made no difference whether the fight was in a public place or in a private place
"if the lieges are alarmed. The term peace is not used as the antithesis of war. Breach of the peace means a breach of public order and decorum, causing disturbance and alarm to members of the public".
Speaking of brawling and where offensive language was used he observed that
"it is not necessary that those who hear it should be alarmed for their personal safety. It is enough if the conduct of those who are found brawling and using the offensive language is such as to excite reasonable apprehension that mischief may ensue to the persons who are misconducting themselves, or to others".
Mr. Jackson pointed out that in Young v. Heatly, page 70, the Lord Justice General had quoted the latter passage but not the former in holding that, while normally there would be evidence of alarm on the part of third persons, such evidence was not essential.
[7]Mr. Jackson submitted that the true position was that the crime of breach of the peace was committed when - (i) there is disorderly conduct that breaches public order and decorum and if there is actual alarm and annoyance - if it is unreasonable for the public to be alarmed and annoyed, there cannot be said to have been a breach of the peace; or (ii) a person conducts himself in a noisy and clamorous manner so as to cause reasonable apprehension in the minds of those who hear it that some mischief may result to the public peace - that is, to persons other than themselves.
[8]Mr. Jackson also pointed out that in a number of decisions such as Buist v. Linton (1865) 5 Irv. 210 and Banks v. McLennan (1876) 3 Coup. 359, it had been held that insulting, threatening or opprobrious language did not constitute breach of the peace. There was no suggestion in the present case that the justice had considered that "in its context" (the phrase used by the court in Smith v. Donnelly) the appellant's conduct had a quality of alarming and disturbing which it would not have had in other circumstances. If the law was as it was stated in Smith v. Donnelly and the earlier decisions which he criticised, a person would be unable to know that his conduct might be held to have been "genuinely alarming and disturbing" since that would depend on the view taken by the court.
[9]The crime of breach of the peace appears to have been regarded originally as a lesser form of mobbing and rioting. The subject received only brief mention in Hume's Commentaries I, 439, where the author referred to cases in which tumult occurred in such a place or was carried to such a length as to disturb and alarm the neighbourhood. As the common law developed thereafter, it became clear that it was recognised that the crime of breach of the peace covered not only the causing of an actual breach of the peace of a neighbourhood, but also conduct giving rise to apprehension that a breach of the peace might occur. It is in regard to the latter form of the crime that there was considerable development of the law, in the sense that it was applied in a wide variety of situations. All along the courts deliberately refrained from specifying or categorising the type of conduct which would qualify, on the view that it depended on the facts and circumstances of the individual case. The language employed by the court in Smith v. Donnelly was plainly intended to emphasise the serious nature of the conduct which would be required in order to justify a conviction. The submission for the appellant in the present...
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