Smith v Donnelly

JurisdictionScotland
Judgment Date07 July 2001
Docket NumberNo 8
Date07 July 2001
CourtHigh Court of Justiciary

Lord Coulsfield, Lord Osborne and Lord Caplan

No 8
SMITH
and
DONNELLY

Procedure—Summary procedure—Devolution—Charge of breach of the peace—Conduct consisting of disorderly behaviour, lying in a roadway, disrupting traffic flow and refusing to desist—Whether the offence of breach of the peace met the Convention standard of clarity and comprehensibility—Human Rights Act 1998 (cap 42), sched 1, art 71

The Human Rights Act 1998, sched 1, art 7 provides inter aliathat no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at that time unless it was criminal according to the general principles of law recognised by civilized nations.

The pannel was charged with committing a breach of the peace in respect of conducting herself in a disorderly manner, lying down in a roadway, disrupting the free flow of traffic and refusing to desist when requested to do so. The conduct complained of was alleged to have taken place at a gate entrance to Her Majesty's Naval Base on the Clyde at Faslane. Having entered a plea of not guilty, the pannel tendered a minute raising as a devolution issue the allegation that the charge of breach of the peace was an all-encompassing charge used to cover any type of behaviour deemed inappropriate in various circumstances and was therefore too vague to be compatible with art 7. The justice (MacPhail) rejected the minute and the pannel thereafter appealed with leave to the High Court of Justiciary.

Held that the judicial authorities on the breach of the peace provided the definition of the crime as being conduct which presents as genuinely alarming and disturbing, in its context, to any reasonable person (p 71C–G); that this definition was of sufficient certainty to meet the requirements of art 7 (pp 71A–72B); and appealrefused.

Observed that now that regard must be had to the Convention, it will normally be proper to specify the conduct said to form the breach of the peace in a charge (p 72F–I).

Pamela Smith was charged on a summary complaint in the district of Argyll and Bute at Helensburgh at the instance of Christopher Charles Donnelly, procurator fiscal of Dumbarton, the libel of which set forth a breach of the peace allegedly committed at Her Majesty's Naval Base on the Clyde at Faslane.

Having previously pled not guilty to the charge, the pannel tendered a minute raising a devolution issue in terms of r 40.3 of...

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32 cases
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    • High Court of Justiciary
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  • An application pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961. Paul Thorpe v DPP
    • Ireland
    • High Court
    • 17 Febrero 2006
    ...MCCONNELL v CHIEF CONSTABLE OF THE GREATER MANCHESTER POLICE 1990 1 AER 423 RUSSELL ON CRIME 1964 12ED 660 SMYTH v DONNELY 2002 SC (JC) 2001 SLT 1007 EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 7 R v LEFEBVRE 1982 1 CCC (3d) 241 CANADIAN CRIMINAL CODE S8(a) DOOLAN v DPP 1......
  • Edith Jane King V. Procurator Fiscal, Dunoon
    • United Kingdom
    • High Court of Justiciary
    • 27 Octubre 2011
    ...his submissions, to the series of cases in which the true nature of breach of the peace has been clarified, in particular Smith v Donnelly 2002 JC 65, Paterson v HM Advocate [2008] HCJAC 18, 2008 JC 327, 2008 SCCR 645, Harris (No. 1) v HM Advocate [2009] HCJAC 80, 2009 SCCR 15, 2009 SLT 107......
  • Alexander Allan Bowes V. Procurator Fiscal, Aberdeen
    • United Kingdom
    • High Court of Justiciary
    • 8 Junio 2010
    ...1991 JC 126; 1991 SLT 918; 1991 SCCR 483 Reedie v HM AdvocateUNK [2005] HCJAC 55; 2005 SLT 742; 2005 SCCR 407 Smith v DonnellySCUNK 2002 JC 65; 2001 SLT 1007; 2001 SCCR 800 Young v HeatlySCUNK 1959 JC 66; 1959 SLT 250; [1959] Crim LR 438 The cause called before the High Court of Justiciary,......
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4 books & journal articles
  • Let the Stalker Beware? Analysis of the Law of Stalking in Scotland
    • United Kingdom
    • Journal of Criminal Law, The No. 78-5, October 2014
    • 1 Octubre 2014
    ...‘Stalking and the Scottish Courts’ (1996) 146 (6761) New Law Journal 1394. 21 Mays, Middlemiss and Watson, above n. 1.22 Smith v Donnelly 2001 SLT 1007 and Harris v HMA (2009) HCJAC 80.23 2001 SLT 1007.24 Specifically Art. 7(1) of the European Convention on Human Rights which requires that ......
  • Pamela R Ferguson, BREACH OF THE PEACE Dundee, Dundee University Press (www.dundee.ac.uk/dup), 2013. xxv + 176 pp. ISBN 9781845861490. £35.
    • United Kingdom
    • Edinburgh University Press Edinburgh Law Review No. , January 2014
    • 1 Enero 2014
    ...upset, annoyance or disgust (see e.g. Wilson v Brown 1982 SLT 361; Young v Heatly 1959 JC 66), in the landmark case of Smith v Donnelly 2001 SLT 1007 it was stressed that “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community” was now requ......
  • Recent Judicial Decisions
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    • Sage Police Journal: Theory, Practice and Principles No. 85-3, September 2012
    • 1 Septiembre 2012
    ...the statement is clearly a threat ofviolence which satisf‌ies the test for breach of the peace in theScottish case of Smith v Donnelly (2001) SLT 1007 whichrequired ‘conduct severe enough to cause alarm to ordinary260 The Police Journal, Volume 85 people and threaten serious disturbance to ......
  • Towards a Good and Complete Criminal Code for Scotland
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    • The Modern Law Review No. 68-3, May 2005
    • 1 Mayo 2005
    ...The approach typi¢ed by cases such as Watt vAnnan,1978JC84,andMcLaughlanvBoyd,1934 JC19(both now overruled), is a thing of the past.53 2002 JC 65, applied inJo nes vCarnegie, 2004 SCCR 361.54 (2003)37 EHRR CD86.55 ibid CD89.56 R. Pound,‘Codi¢cation in Anglo-American Law’, in B.Schwartz (ed)......

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