McConachie v Shanks
| Jurisdiction | Scotland |
| Judge | Sheriff Principal IR Abercrombie,Sheriff SF Murphy,Sheriff WH Holligan |
| Judgment Date | 14 August 2018 |
| Docket Number | No 1 |
| Court | Sheriff Appeal Court |
| Date | 14 August 2018 |
[2018] SAC (Crim) 10
Sheriff Principal IR Abercrombie QC, Sheriff SF Murphy QC and Sheriff WH Holligan
Angus v Nisbet [2010] HCJAC 76; 2011 JC 69; 2011 SLT 98; 2011 SCL 33; 2010 SCCR 873
Bowes v McGowan sub nom Bowes v Frame; Bowes v Procurator Fiscal, Aberdeen[2010] HCJAC 55; 2010 JC 297; 2010 SLT 683; 2010 SCCR 657; 2010 SCL 761
Burnett v Procurator Fiscal, Hamilton [2017] SAC (Crim) 4; 2017 SCL 569; 2017 GWD 11–151
Ferguson v Carnochan (1889) 16 R (J) 93
Smith v Donnelly 2002 JC 65; 2001 SLT 1007; 2001 SCCR 800
Wotherspoon v Orr sub nom Wotherspoon v Procurator Fiscal, Glasgow [2017] HCJAC 69; 2018 JC 79; 2017 SCCR 505; 2017 SCL 955; 2017 GWD 30–476
Justiciary — Crime — Breach of the peace — Stranger winking, smiling and gesturing at 12-year-old child and giving that child his name, address and telephone number — Whether behaviour severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community — Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), sec 38(1)
Douglas McConachie was charged in the sheriffdom of Grampian, Highland and Islands at Aberdeen on a summary complaint at the instance of Andrew Shanks, procurator fiscal there, the libel of which set forth a contravention of sec 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) and, in the alternative, breach of the peace. The procurator fiscal-depute withdrew the statutory charge at the conclusion of the Crown case, and the summary sheriff repelled the defence submission that there was no case to answer in respect of the common law charge. No defence evidence was led. The summary sheriff proceeded to convict the appellant in respect of breach of the peace. The appellant appealed against his conviction by stated case to the Sheriff Appeal Court.
The appellant was convicted after summary trial on a charge of breach of the peace. The appellant had winked and smiled intermittently at the complainer, a 12-year-old child, on a bus. As he alighted from the bus, the appellant had placed his bus ticket, on which he had written his name, address and telephone number, on top of a gym bag on the complainer's lap. After he got off the bus, the appellant had made a gesture towards the complainer suggesting that the complainer telephone him. The complainer had felt “stressed and uncomfortable”. Another passenger had thought “it didn't seem right” and “it seemed off” because the appellant and the complainer had not seemed to know each other. The appellant submitted that the sheriff erred in repelling his submission of no case to answer.
Held that: (1) there had been nothing threatening about the appellant's conduct where he had not engaged in conversation with the complainer, no physical contact had taken place beyond the placing of the appellant's bus ticket, and the appellant's final gesture had been made after he had alighted from the bus (para 9); (2) the appellant's behaviour was not genuinely alarming and disturbing to any reasonable person nor was it likely to threaten serious disturbance to the community (para 9); and appeal allowed and conviction quashed.
Observed that the appellant's behaviour could be considered inappropriate and imprudent conduct towards a child whom he did not know but not all such behaviour was made criminal by reference to the law of breach of the peace (para 9).
Angus v Nisbet 2011 JC 69 considered, Smith v Donnelly2002 JC 65 and Wotherspoon v Orr2018 JC 79applied and Bowes v McGowan2010 JC 297distinguished.
The cause called before the Sheriff Appeal Court, comprising Sheriff Principal IR Abercrombie QC, Sheriff SF Murphy QC and Sheriff WH Holligan, for a hearing, on 27 March 2018.
At advising, on 14 August 2018, the opinion of the Court was delivered by Sheriff SF Murphy QC—
Opinion of the Court— [1] Douglas McConachie appeals against his conviction for breach of the peace at Aberdeen Sheriff Court in October 2017. He was originally charged under sec 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) (‘the 2010 Act’) but at the conclusion of the Crown case the procurator fiscal-depute properly conceded that there was insufficient evidence for the statutory charge to prove. The defence submitted that there was no case to answer in respect of the common law alternative of breach of the peace. The summary sheriff repelled that submission and proceeded to convict.
[2] The summary sheriff found that the complainer, a boy aged 12 years, was going home after school on a bus. He became aware that the appellant, a 65-year-old man who was a passenger on the bus, was intermittently smiling and winking at him. The appellant wrote his name, address and phone number on the back of his bus ticket, and as he was alighting from the bus he placed the ticket on top of the complainer's gym bag, which was on his lap. Another passenger saw this and also observed the appellant making a gesture towards the complainer...
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