Milne and Others v Procurator Fiscal

JurisdictionScotland
CourtSheriff Appeal Court
JudgeSheriff Principal MM Stephen,Sheriff Principal MW Lewis,Sheriff PJ Braid
Judgment Date26 July 2016
Docket NumberNo 1
Date26 July 2016

[2016] SAC (Crim) 26

Sheriff Principal MM Stephen QC, PSAC,

Sheriff Principal MW Lewis and

Sheriff PJ Braid

No 1
Milne
and
Harrower
Cases referred to:

Allan v Patterson 1980 JC 57; 1980 SLT 77; [1980] RTR 97; 124 SJ 149

Hayes v Willoughby [2013] UKSC 17; [2013] 1 WLR 935; [2013] 2 All ER 405; [2013] 2 Cr App R 11; [2013] EMLR 19; 163 (7554) NLJ 25

M v Harvie [2015] HCJAC 7; 2015 SCL 402; 2015 GWD 6–119

Paterson v Harvie [2014] HCJAC 87; 2015 JC 118; 2014 SLT 857; 2014 SCCR 521; 2014 SCL 606

Smith v Donnelly 2002 JC 65; 2001 SLT 1007; 2001 SCCR 800

Urquhart v HM Advocate [2015] HCJAC 101; 2016 JC 93; 2015 SLT 853; 2016 SCCR 33; 2016 SCL 53

Justiciary — Crime — Accused persons following complainers while having faces partially concealed — Whether evidence of threatening behaviour — Whether behaviour of accused person reasonable in the circumstances — Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), sec 38(1), (2)

Colin Milne, Amy Elizabeth Jay Lilburn and Beverly Gwen Bernice Milne were charged in the sheriffdom of Tayside, Central and Fife at Perth on a summary complaint at the instance of Jennifer Harrower, procurator fiscal there, the libel of which set forth, inter alia, a charge contrary to sec 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, with an alternative libel of breach of the peace. The cause came to trial, on 27 January 2016, in the sheriff court at Perth and the appellants were convicted of the charge contrary to the 2010 Act. The appellants appealed against their conviction by stated case to the Sheriff Appeal Court.

Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) (‘the 2010 Act’) provides, inter alia, “(1) A person (‘A’) commits an offence if– (a) A behaves in a threatening or abusive manner, (b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and (c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm. (2) It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.”

On 13 March 2015, a foxhunt had been organised at an estate within Perthshire, comprising a number of people armed with shotguns, a gamekeeper, and two houndsmen in charge of a pack of dogs. The appellants entered a field on the estate and interrupted the hunt, wearing dark jackets, combat-style trousers and balaclavas partially masking their faces, and subsequently, due to their continued presence on the estate, the hunt was discontinued. The two houndsmen left the area in their motorvehicle and were thereafter followed by the appellants on various country roads, including a private road, over a period of some two hours, while the appellants' faces remained partially masked. The appellants were subsequently charged on summary complaint with a contravention of sec 38(1) of the 2010 Act, with an alternative libelled of breach of the peace, and were convicted by the sheriff. They appealed by stated case against their conviction and argued that there had been insufficient evidence led that their activity had amounted to threatening behaviour and, further, that their conduct should be considered as “reasonable” in terms of the defence available under sec 38(2), as their purpose on the day in question had been to prevent or detect crime, in interrupting what had been perceived to be an unlawful hunt.

Held that: (1) in all the circumstances, the evidence led by the Crown had been sufficient in law to establish both threatening behaviour, and behaviour which was likely to cause a reasonable person to suffer fear and alarm, as well as the necessary mens rea, which was capable of being inferred from the actings of the appellants (para 15); (2) the assessment of reasonableness in the context of the defence under sec 38(2) of the 2010 Act was primarily one for the court of first instance to determine, having regard to the evidence led of all the facts and circumstances, and, in all the circumstances, the sheriff had been entitled to reject the suggestion that the appellants' behaviour had been reasonable (para 17); and appeal refused.

Urquhart v HM Advocate 2016 SCCR 33 and Hayes v Willoughby[2013] 1 WLR 935considered and Paterson v Harvie2015 JC 118applied.

The cause called before the Sheriff Appeal Court, comprising Sheriff Principal MM Stephen QC, PSAC, Sheriff Principal MW Lewis and Sheriff PJ Braid, for a hearing, on 26 July 2016.

Eo die, the court refused the appeal for the reasons set forth in the opinion of the Court which was delivered by Sheriff Principal MM Stephen QC, PSAC—

[1] Opinion of the Court— The appellants appeal by stated case their convictions on charge 1 of the complaint, namely, a contravention of sec 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) (‘the 2010 Act’).

[2] Following trial at Perth Sheriff Court which concluded on 27 January 2016 the appellants were found guilty of charge 1 as amended in the following terms:

‘(001) On 13 March 2015 at various roads from Snaigow Estate, including Blairgowrie to Dunkeld Road, A923 you did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear and alarm in that you did with your faces masked repeatedly follow [AB] and [EB] … then in their vehicle on various roads within Perthshire from Snaigow Estate including the Blairgowrie to Dunkeld Road A923 all to their fear and alarm; CONTRARY to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.’

We observe that the appellants were charged in the alternative with the common law offence of breach of the peace.

[3] At the close of the Crown case the appellants made a submission of no case to answer in terms of sec 160 of the Criminal Procedure (Scotland) Act 1995 (cap 46) which the sheriff repelled in respect of charge 1 and sustained in respect of charge 2 being a contravention of sec 68(1) of the Criminal Justice and Public Order Act 1994 (cap 33) (aggravated trespass).

[4] The first and third appellants are a married couple and the second appellant is the daughter of the third appellant and the stepdaughter of the first appellant.

[5] The questions posed for the opinion of this court in each of the stated cases are in identical terms as follows:

‘(1) Did I err in rejecting the submission by the appellant's agents in terms of section 160(1) of the Criminal Procedure (Scotland) Act 1995?

(2) On the facts stated, was I entitled to convict the appellant?’

Counsel for the appellants addressed us on questions of law 3 and 4 proposed by the first and third appellants and rejected by the sheriff at the stage of adjustment of the stated case. He did not insist on question 4 but argued that proposed question 3 ought to be allowed as it addressed the question of ‘reasonableness’ found in the statutory defence in terms of sec 38(2) of the 2010 Act. We considered it was proper to allow the additional question 3 in the stated case for the first and third appellants, but restricted as follows:

‘Question 3 Did I err in rejecting as a s.38(2) defence the appellants' position that he/she was acting reasonably in monitoring the activities of the witnesses Edward Michael Broad and Angus Edward Broad?’

We reject the remaining parts of the proposed question as unnecessary or as the sheriff states superfluous. No such question was proposed on behalf of the second appellant.

[6] The context to events on 13 March 2015 is a foxhunt which had been organised by the head gamekeeper to the Snaigow Estate and comprised a number of people armed with shotguns, two houndsmen who managed a pack of 22 dogs and the gamekeeper who was in charge of the hunt. The complainers, AB and EB, are the houndsmen who controlled the pack of dogs. The gamekeeper had identified two woods where foxes might be found and the hounds, under the control of the complainers, would be put in at one end of the wood with a view to flushing the fox out of the wood where it would be shot by those participants with guns. The sheriff found that the hunting of foxes in the planned manner is lawful. He went on to find that the Crown evidence failed to show that the hunting on this occasion was lawful in the manner specified under the Protection of Wild Mammals (Scotland) Act 2002 (asp 6). The significance of this (which is not truly a finding in fact at all) is doubtful standing the charges on the complaint, but we mention it in deference to the submissions of counsel for the appellant, who placed some reliance on it.

[7] The hunt began on the morning of 13 March 2015 and, after one fox had been successfully hunted and shot, the hunt moved on to another area. At that stage, the hunt was interrupted by the arrival of the appellants who entered a field on the estate ‘wearing dark jackets, combat-style trousers, hats and snoods. The latter were pulled up over their faces, and their hats were pulled down to just above their eyes’. Following the arrival of the appellants, the incident involving the appellants and a member of the hunting party took place and the hunt was then aborted for lunch. By the time this incident occurred, the complainers had already left the field for Snaigow House. The hunt party was followed by the appellants to Snaigow House where the lunch took place. In light of the continued presence of the appellants, a...

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