Note Of Appeal Against Conviction And Sentence By William James Kilpatrick Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Justice Clerk,Lord Brodie |
| Neutral Citation | [2014] HCJAC 73 |
| Court | High Court of Justiciary |
| Date | 02 July 2014 |
| Docket Number | XC662/13 |
| Published date | 15 July 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Justice Clerk Lord Brodie Lord Philip
| [2014] HCJAC 73 XC662/13
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE
by
WILLIAM JAMES KILPATRICK Appellant;
against
HER MAJESTY’S ADVOCATE Respondent:
_____________ |
Appellant: CM Mitchell; Virgil Crawford, Stirling
Respondent: Bain AD; the Crown Agent
2 July 2014
[1] On 13 September 2013, at Stirling Sheriff Court, the appellant was found guilty of a charge of breach of the peace. He had originally faced an indictment which libelled that:
“on 24 April 2011 … you … did conduct yourself in a disorderly manner and did post a message which was of an offensive and threatening nature to a social network site to which the public had access and commit a breach of the peace”.
[2] The case has a prolonged history, commencing with a first diet on 10 April 2012, almost a year after the offence. Thereafter, at least another 12 further first diets took place and relative trial diets were postponed. In the midst of these, there was a debate extending over several days in May 2013. On one of those days the respondent was allowed to amend the indictment by deleting “to which the public had access” and adding “place [RH] in a state of fear and alarm” after the word “site”. At a further first diet of 5 September 2013, the respondent was allowed to amend the indictment again by inserting “incite others to commit violence” after the word “site”. The appellant was convicted of the charge as amended. This thus read:
“on 24 April 2011 … you … did conduct yourself in a disorderly manner and did post a message which was of an offensive and threatening nature to a social networking site, incite others to commit violence, place [RH] in a state of fear and alarm and commit a beach of the peace.”
On 23 October 2013, the appellant was sentenced to 9 months imprisonment.
[3] The evidence was in relatively short compass. It was not disputed that on 24 April 2011, which was the day of a match between Rangers and Celtic, the appellant had posted onto his friends’ pages on Facebook the words:
“Neil Lennon’s a f… c… Get mare (sic) bullets and bombs sent boys. Glasgow Rangers Champions”.
It was estimated by the principal witness, RH, that the posting would have been sent to hundreds of the appellant’s “friends”. This was against a background of news media to the effect that bullets had recently been sent to the then Celtic manager, and bombs and other packages had been sent to others connected with that Club. The posting was reported to the police by RH.
[4] The appellant did not give evidence but, during the course of an interview with the police, which was said to constitute a mixed statement, he had said:
“I did write that aye, it was just for a bit of banter. I wasn’t meaning anything serious about it”.
[5] The appellant lodged a Note of Appeal containing 2 grounds relative to conviction. The first was said to be essentially narrative and was that the sheriff had erred in allowing the libel to be amended by introducing the averment of incitement. The second ground was that the sheriff had misdirected the jury in failing to address the issue of the “mens rea” of incitement. Although it was accepted that, in the normal case, there did not require to be evidence that an accused intended any particular result in respect of an allegation of a breach of the peace, the libel here had been converted into one whereby the appellant had incited persons to act in an unlawful manner. For the jury to have convicted of that part of the libel, they required to find that he had had the appropriate “mens rea”.
[6] The sheriff had given the jury the standard directions on breach of the peace to the effect that the conduct must be
“severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. It involves causing substantially more than irritation. It is conduct which … in the particular circumstances … is genuinely alarming and seriously disturbing to any reasonable person. It must also threaten public safety or serious disturbance to the community. There does not need to be evidence of the conduct having that result. It is enough if you decide that that result reasonably could be expected. It is enough that a reasonable person would be likely to be distressed or alarmed and that the public peace would be compromised having regard to the nature of the conduct and the circumstances and context in which it took place. There does not need to be evidence that the accused intended that result. Again, it is enough if you decide that such a result was likely. It is the potential of the conduct you look at.”
In a later passage, the sheriff also directed that, if the jury accepted that it was just “banter” and not a serious threat of disturbance and if the jury did not consider the conduct genuinely alarming and seriously disturbing etc, they would acquit.
[7] In submissions, ground 2 was addressed first on the basis that it was effectively determinative of the appeal. The contention was that the sheriff ought to have directed the jury that, in order to incite others to violence, the appellant required to have an intention to do so. Incitement could not happen by accident or inadvertence. The direction which the sheriff had given about banter appeared to be contradictory to his earlier statements on what was required for a conviction of breach of the...
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