Smith v Donnelly
Jurisdiction | Scotland |
Judgment Date | 07 July 2001 |
Docket Number | No 8 |
Date | 07 July 2001 |
Court | High Court of Justiciary |
Lord Coulsfield, Lord Osborne and Lord Caplan
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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