Richard Langley Russell V. Procurator Fiscal, Glasgow
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon,Lord Carloway,Lord Nimmo Smith |
| Judgment Date | 26 November 2010 |
| Neutral Citation | [2010] HCJAC 138 |
| Published date | 21 December 2010 |
| Docket Number | XJ188/10 |
| Court | High Court of Justiciary |
| Date | 26 November 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Carloway Lord Mackay of Drumadoon Lord Nimmo Smith | [2010] HCJAC 138 Appeal No: XJ188/10 OPINION OF THE COURT delivered by LORD CARLOWAY in the Reference by the Scottish Criminal Cases Review Commission by RICHARD LANGLEY RUSSELL Appellant; against PROCURATOR FISCAL, GLASGOW Respondent: _______ |
Appellant: Kennedy; McIntosh & MacLachlan, Glasgow
Respondent: Clancy QC AD; Crown Agent
26 November 2010
1. The Trial Procedure
[1] The appellant appeared at Glasgow Sheriff Court on a summary complaint which libelled that:
"between 6 February 2007 and 8 March 2007 at the premises of Wright, Johnstone and MacKenzie, Solicitors, ... Glasgow and at ... School, Glasgow you... did conduct yourself in a disorderly manner repeatedly harass [M], a teacher at [the] School and did by means of a letter threaten said [M], enter the playground, repeatedly fail to comply with requests to retreat from the teacher, place said [M] in a state of fear and alarm for her safety and commit a breach of the peace".
[2] After sundry procedure, the case called for trial on 22 February 2008. The appellant elected to represent himself. As the Sheriff recorded events in the subsequent stated case, at the outset of the trial diet the appellant explained that he had been unable to find an agent to act for him. Four agents had declined to do so and a fifth had withdrawn from acting. The appellant sought an adjournment, not to secure the services of a sixth agent, but because he was of the view that there had not been full disclosure to him, notably in the form of a statement by PC Stephen Kay, the arresting officer, and the name of a procurator fiscal who, he said, had instructed his arrest. The appellant also wished a commissioner appointed to take the evidence of his six year old son. The purpose of that was said to be to avoid the child giving evidence in court.
[3] The Sheriff refused the motion to adjourn, not being satisfied that there had been any failure to disclose relevant material and having regard to the likelihood that the trial would be adjourned part-heard in any event. That was indeed what happened; the adjourned diets being 27 February, when the Crown case was closed and the defence began, and 12 March 2008, when the Sheriff convicted the appellant, fined him £350 and made a twelve month non-harassment order.
[4] During the course of the trial, the playing of part of an audio tape of the appellant's police interview had been the subject of an objection by the appellant. The respondent had proposed to play only part of the tape, pursuant to an agreement reached with the appellant's previous agent, who had been concerned about extraneous prejudicial content. The objection raised was on the bases that: (1) the tape had been "doctored" by the removal of a question about the appellant's religious beliefs; (2) the whole tape ought to be played; and (3) the police questioning had been unfair. The Sheriff held a trial within a trial, although the appellant decided not to lead any evidence during that procedure. The Sheriff repelled the objection, being satisfied that none of the bases for the objection had been made out.
2. Findings in Fact
[5] M was the headmistress of a Primary School in Glasgow. She had raised interdict proceedings against the appellant. She was represented by a solicitor from Wright Johnstone and MacKenzie. The appellant appeared on his own behalf in that process too. On 6 February 2007, the solicitor received a handwritten letter dated 4 February requesting him to "give the note enclosed" to his client. The appellant had signed the letter, to which was attached a handwritten note. This note started with the sentence:
"In the name of Jesus, I am asking you to admit you have told evil lies about me. Admit that you have lied to your own lawyer and Council bosses".
It urged M to admit all her sins so that she would be forgiven. It concluded:
"If you do not, then the Lord, King of Kings, Lord of Lords, will condemn you to solitude.
If you do not tell the truth now, this letter and my voice, will be the last things you see and hear before being cast to Hell.
In God's name, Amen (signature of the appellant)".
Not surprisingly, the solicitor was alarmed by the note, the terms of which he immediately conveyed to M at the school over the telephone and then by fax. M was anxious, distressed, upset and placed in a state of fear and alarm. She had to stop work and go home. The police were called and the appellant was detained and interviewed. He admitted that it was possible that he had written the note.
[6] Some time prior to 8 March 2007, the appellant had been interdicted from approaching M, telephoning her, writing to her, approaching her at her place of work and placing her in a state of fear and alarm. However, it did not prohibit him from entering the playground of the school, apparently because he had children attending there. A white line had been painted across one end of the school playground, beyond which line parents were encouraged not to go, in order that the children could line up for class at the other end of the playground, some distance away. On 8 March, the appellant crossed that line with his youngest son and took him to the other end of the playground near to the door leading to the classrooms. The Sheriff found in fact:
"(20) This was under a pretext that the appellant wished to inform the said child's teacher that the child was not to go on a school trip that morning but should remain instead at school to do extra academic work".
[7] The appellant, who was wearing dark sunglasses, spoke to the child's teacher near the door to the classrooms. The teacher was apprehensive and wary of the appellant's intentions as she knew of the terms of the interdict, as did other members of staff. At this point M arrived at the door. She became frightened upon seeing the appellant, felt intimidated and was placed in a state of fear and alarm. She asked him repeatedly to retreat behind the white line, but he ignored those requests, making M more anxious and distressed. The appellant then stopped talking to the teacher, looked at M and walked slowly away across the playground. The police were called and arrested the appellant later at his home, purporting to use the power of arrest attached to the interim interdict.
[8] The Sheriff observed in his note (stated case p 16) that:
"I have no doubt that [the appellant's] mere presence was designed to intimidate [M] and was provocative. He went up to the school building on a pretext to speak to [the class teacher] about his son - it was quite unnecessary, a telephone call the day before would have sufficed. As indicated above, I was also entirely satisfied on the evidence that the appellant had written and posted or caused to have posted the note to [the solicitor] enclosing the letter to [M]. The Crown brought a single charge of breach of the peace referring to both 'incidents' and the Crown in its closing submission was, in my view, correct to state that the two matters must be taken together. The complainer was apprehensive at the mere sight of the appellant on 8 March 2007 because of the events of 6 February 2007 and the granting of the intervening interim interdict".
3. The Stated Case and Reference
[9] The appellant applied for a stated case. He complained that the Sheriff had erred by: (a) (i) failing to grant the adjournment; (a) (ii) admitting the tape of his police interview, which had not been provided in advance of the trial, was played only in part and was accompanied by an inaccurate transcription; (b) repelling a submission regarding the commission to take the child's evidence; and (c) finding the appellant guilty "in the face of no second source of evidence". However, in the final stated case, there were only two questions posed, viz:
"1 Was I entitled to hold that the evidence of the police interview of the appellant was admissible?
2 Was I entitled to convict the appellant on the facts stated?"
No additional questions were proposed by either party during the adjustment period.
[10] Leave to appeal was refused at first sift on the somewhat inadequate and circular basis: "for the reasons stated in the note to the stated case". The appellant applied to the second sift. He raised a new issue in his application concerning remarks made by the Sheriff to the effect that he had heard evidence that the appellant had behaved in an orderly manner. The second sift judges correctly did not address this, since it had not been raised in the stated case. They too refused leave to appeal on the more expansive basis that the appeal was unarguable because: "the Sheriff was quite entitled in law to hold that a breach of the peace was committed on the basis of the facts that he found proved". No reference was made to the issue posed in the first question.
[11] The appellant applied for a reference from the Scottish Criminal Cases Review Commission. The first ground for this was categorised as "judicial bias" breaching "the laws of natural justice". This raised again the objection to the interview and the refusal to adjourn, as well as a complaint that the initial arrest of the appellant had been for an alleged contravention of the interim interdict and not a breach of the peace. The application also complained that the Sheriff had given advice to the appellant not to call "further witnesses" because he had proved that he had behaved in an orderly manner. The Sheriff rebutted this last matter in response to a direct enquiry from the SCCRC. Ultimately, no reference was made on this ground.
[12] The second ground proffered by the appellant was categorised as "sufficiency"...
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