Edward Montgomery Against The Procurator Fiscal, Kilmarnock

JurisdictionScotland
JudgeLord Bracadale,Lord Justice Clerk,Sheriff Principal Mhairi M Stephen
Judgment Date17 December 2014
Neutral Citation[2015] HCJAC 2
CourtHigh Court of Justiciary
Published date20 January 2015
Docket NumberHCA/2014
Date17 December 2014

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Bracadale

Sheriff Principal Stephen

[2015] HCJAC 2

HCA/2014/004604/XJ

OPINION OF THE COURT

delivered by LORD CARLOWAY,

the LORD JUSTICE CLERK

in

APPEAL

by

STATED CASE

EDWARD MONTGOMERY

Appellant;

against

PROCURATOR FISCAL, KILMARNOCK

Respondent:

_____________

Applicant: I Paterson (Solicitor Advocate); Paterson Bell (for Allan Kerr, Kilmarnock)

Respondent: Scullion QC AD; the Crown Agent

17 December 2014

Introduction
[1] On 7 August 2014, after a trial lasting some 5 days at Kilmarnock Sheriff Court, the appellant was found guilty of 3 charges of breach of the peace. The first was that, at Saltcoats in February 2010, he had, on various occasions, stared repeatedly at two 14 year old girls and placed them in a state of fear and alarm. The second was that, at Dreghorn in April 2012, he had attempted to entice an 11 year old boy into his van. The third was that, at Ardrossan in May 2013, he had repeatedly stared at three children, two boys aged 9 and 11 and a girl aged 12, and placed them in a state of fear and alarm. The sheriff imposed a Community Payback Order, with 240 hours of unpaid work as a condition. The appeal raises issues concerning the scope of breach of the peace and the application of mutual corroboration.

Evidence
[2] The evidence was in relatively narrow compass.
On the first charge, the complainer was going home from school at about 3.45pm. She was passing a row of shops when she noticed the appellant staring at her continuously from a white van. He had a long beard. He was scruffy and “creepy” in appearance. On going back to the shops some fifteen minutes later, she had the same experience. A day or so later, she was again returning from school, this time with a friend. Both girls became aware of the appellant staring at them continuously whilst they walked some 30 metres towards and past the van. The girls were so alarmed and disturbed by this that they went into a nearby shop and sought assistance. A member of staff left the shop and took the registration number of the van, of which the appellant was the registered keeper. When spoken to by the police, the appellant admitted being parked in the relevant place, but said that this was because he had been waiting for his friend to come out of the bookies.

[3] On the second charge, the complainer had seen a white van as he was walking from his grandmother’s house. The van braked sharply and turned into a car park before approaching the complainer from behind and stopping. The driver was scruffy with a long beard. The driver spoke to him saying, “… do you want to come into my van to get some sweets?” The complainer was frightened and ran to a friend’s house. His friend’s mother, and the complainer, ran to a point at which they could see the van being driven away at speed. At the same time, the friend’s grandmother was in the vicinity and was able to identify the appellant as the driver of the van as it passed her. When the police examined the appellant’s van, it was found to have a red panelled interior with a mattress and some bedding. It was a different van from that in the first charge. The appellant admitted being in the vicinity of the locus at the material time, attempting to visit a friend, whose address he did not know.

[4] The third charge involved three children playing in a beach area. The beach was bordered by a cul‒de‒sac along which a white van was driven. It was turned at the end of the road and approached the children. The driver, namely the appellant, stared continuously at them, causing them to run off. He would have lost sight of the children momentarily, as they were behind a wall. On seeing them again, he speeded up until he reached their position, at which point he slowed to a crawl and started staring at them continuously again. The children were panic stricken and ran home in an hysterical state.

[5] A no case to answer submission was made on the basis of insufficient evidence of identification on charge 2, even with the application of mutual corroboration, because that alleged offence was not similar in time, character and circumstances with those on charges 1 and 3. It was also submitted that the conduct in respect of charges 1 and 3 did not constitute a breach of the peace, because it was not severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community.

[6] The sheriff repelled the submission. On charge 2 he held that the evidence from the complainer and his friends’ relatives, speaking about the man with the long beard in the white van, was sufficient when combined with the grandmother’s identification of the driver. He considered that the conduct in respect of charge 2 was sufficiently similar to that in the other two charges as to merit the application of mutual corroboration. He concluded that the evidence in respect of charges 1 and 3 described conduct which was genuinely alarming and disturbing in its context and would be so regarded by any reasonable person.

Submissions
Appellant
[7] The appellant maintained that, as had been submitted to the sheriff, the conduct was not severe enough to be classified as
“genuinely alarming in its context, to any reasonable person”(Smith v Donnelly 2002 JC 65 at para [17]). The fact that alarm was caused was not determinative (Jones v Carnegie 2004 JC 136 at para [13]). The conduct required to be both severe enough to cause alarm to ordinary people and thereafter be capable of provoking serious disturbance to the community (Smith v Donnelly (supra); Paterson v HM Advocate 2008 JC 327 at para [22]). The matter required to be tested by reference to the potential reaction of a notional reasonable third party (Angus v Nisbet 2011 JC 69 at para [15]). It was accepted that the sheriff had applied the correct test but said that he had erred in holding that the conduct could have provoked a serious disturbance.

[8] On the basis that the appeal against conviction on charges 1 and 3 were successful, there was insufficient evidence to corroborate either the identification of the appellant or the conduct in charge 2. That conduct was not sufficiently similar in character to that in charges 1 and 3. In addition, it did not have a “significant sexual aspect” in terms of section 92 of the Sexual Offences Act 2003 (sch 3, para 60). The appellant was under the impression that the certification under the Act had related only to this charge, although the minutes and copy certificate state that it related to all 3 charges.

Respondent
[9] The advocate depute maintained that evidence
...

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3 cases
  • In Stated Case Bty A.m. Against The Procurator Fiscal, Kilmarnock
    • United Kingdom
    • High Court of Justiciary
    • 28 January 2015
    ...provided in Smith v Donnelly is a matter of fact and degree and primarily one for the court of first instance: Montgomery v PF Kilmarnock [2015] HCJAC 2, citing Russell v Thomson 2011 SCCR 77. However, it is a serious step to label conduct which does no actual harm and offers only remote pr......
  • Wotherspoon v HM Advocate
    • United Kingdom
    • High Court of Justiciary
    • 23 August 2017
    ...2 White 278 Gough v UK (49327/11) (2015) 61 EHRR 8; 2015 SCCR 1; 38 BHRC 281 Lucas v UK (39013/02) [2003] ECHR 717 Montgomery v Harvie [2015] HCJAC 2; 2015 JC 223; 2015 SLT 106; 2015 SCL 285 Russell v Thomson [2010] HCJAC 138; 2011 JC 164; 2011 SCCR 77; 2011 SCL 295; 2011 GWD 2–89 Smith v D......
  • Appeal From The Sheriff Appeal Court By David Wotherspoon Against Procurator Fiscal, Glasgow
    • United Kingdom
    • High Court of Justiciary
    • 23 August 2017
    ...capable of fitting that definition was a matter of fact and degree and primarily one for the court of first instance (Montgomery v Harvie, 2015 JC 223, citing Russell v Thomson, 2011 JC 164). If there was no evidence of actual alarm, the conduct had to be flagrant. “Flagrant” conduct was th......

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