W.m. V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon,Lord Kingarth,Lord Justice General |
| Judgment Date | 16 July 2010 |
| Neutral Citation | [2010] HCJAC 75 |
| Published date | 16 July 2010 |
| Docket Number | XC316/09 |
| Court | High Court of Justiciary |
| Date | 16 July 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Kingarth Lord Mackay of Drumadoon | [2010] HCJAC 75 Appeal No: XC316/09 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE by W.M. Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead; Paterson Bell, Edinburgh
Respondent: Cherry, A.D.; Crown Agent
16 July 2010
Introduction
[1] On 24 March 2009 in the High Court at Glasgow the appellant was convicted of a number of offences involving serious sexual abuse of his two sons. In addition, he was convicted of two charges of breach of the peace, against which alone he now appeals. Those charges were in the following terms:
"(3) on various occasions between 1 April 1996 and 28 February 2003, both dates inclusive, the exact dates being to the Prosecutor unknown, at ... [an address in Lanarkshire and at another address in Argyll], the exact location being to the Prosecutor unknown, you did conduct yourself in a disorderly manner, threaten to harm [A].... your son, c/o Strathclyde Police, ............., his family and others if he gave information to any person in respect of the acts libelled in charges (1) and (2) hereof, place him in a state of fear and alarm and commit a breach of the peace;
(6) on various occasions between 1 November 1998 and 28 February 2003, both dates inclusive, the exact dates being to the Prosecutor unknown, at .... [an address in Lanarkshire and at another address in Argyll], the exact location being to the Prosecutor unknown, you did conduct yourself in a disorderly manner, threaten to harm [B]... your son, c/o Strathclyde Police, ............, his family and others if he gave information to any person in respect of the acts libelled in charges (4) and (5) hereof, place him in a state of fear and alarm and commit a breach of the peace."
Circumstances of the offences
[2] The complainers' mother had separated from the appellant at the time of the offences, which took place during their regular access visits with him. The first complainer was aged between 5 and 12 years old and the second between 5 and 9 years old at the time. The access visits normally took place on a Sunday afternoon. However, the complainers would occasionally stay overnight with the appellant. Following the visits they were returned to their mother's care. For around three years after the separation she lived with the complainers at her parents' house in Lanarkshire. In about 2000 the appellant went to work in Ireland and access became less frequent. The offences took place in a two-bedroom flat, in which the appellant was a lodger and which was owned and occupied by one of his male work colleagues, and at rented holiday accommodation in Argyll, comprising one open-plan room, in which the complainers, the appellant and his work colleague slept. There was evidence that, on at least one occasion, the appellant's work colleague was present when an act of sexual abuse was perpetrated upon one of the complainers at the flat. He appears to have been complicit in that abuse. There was no evidence, however, that he was present at the time of any other abuse. The threats and sexual abuse were not immediately reported by the complainers. Although they had said nothing about it to their mother, she became suspicious that they were being sexually abused by the appellant. A police investigation took place in 1999, but did not disclose sufficient evidence for a prosecution. The complainers spoke to the police again in 2006 and a prosecution was then instituted.
Directions by the trial judge
[3] The trial judge gave the jury the following directions on the crime of breach of the peace:
"This crime covers many types of anti-social behaviour, ladies and gentlemen. It can be committed in public or in private. If it is in private, there must be a realistic risk of it being discovered. The conduct must be severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. [It is] conduct which in the particular circumstances in which it has occurred is genuinely alarming and seriously disturbing to any reasonable person. There does not need to be evidence of the conduct having that result. It is sufficient if you decide that the result reasonably could be expected. So it is enough if a reasonable person would be likely to be distressed and alarmed, having regard to the nature of the conduct in 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, so it is the potential of the conduct that you look at. Therefore, ladies and gentlemen, in deciding whether or not there has been a breach of the peace, you will have to look both at the nature and the quality of the conduct proved and also at its likely consequences. You will also have to look at the context in which that conduct took place. It is a matter entirely for you, but you may have little difficulty in concluding that if the accused did make the threats of harm alleged in these charges this conduct amounted to a breach of the peace. For the Crown to prove these charges you would have to be satisfied, firstly, that the accused behaved in the way described in the charges and secondly, that in the circumstances in which it took place that conduct was or was likely to be genuinely alarming and seriously disturbing to the ordinary reasonable person. Now ladies and gentlemen, just one more point about these charges of breach of the peace. You will see that each of them refers to the preceding charges of sodomy and lewd practices, so that in charge (3) there is a reference to charges (1) and (2) and in charge (6) there is a reference to charges (4) and (5). Therefore it would not be open to you to convict of breach of the peace unless you first convicted the accused of one or other of the charges to which the reference is made in the narrative of the breach of the peace allegation."
Submissions for the appellant
[4] The first ground of appeal presented by Mr Shead was that as a matter of sufficiency the evidence presented did not satisfy the second part of the conjunctive test for breach of the peace: there had been no public element to the appellant's behaviour, such as was likely to threaten serious disturbance in the community (Harris v HM Advocate 2010 SCCR 15, per Lord Justice General Hamilton at para [16]; Paterson v HM Advocate 2008 JC 327; cf Young v Heatly 1959 JC 66). The conduct took place exclusively in private and the averments of "disorderly conduct" were empty of any real content (Harris v HM Advocate, paras [23]-[24]).
[5] The second ground of appeal was that the trial judge had not given directions in accordance with the conjunctive test. His report (at pages 13-14) made clear that he had not applied his mind to the correct test. While he had given directions on the need for a "realistic risk" of private behaviour being discovered, these had been incomplete and apt to mislead. It was not sufficient that a child might, in due course, inform a responsible adult of the threats. In suggesting otherwise, the court in Bowes v McGowan [2010] HCJAC 55 may have fallen into error (per Lord Osborne at para [22]). That decision was not easily reconciled with the Opinion of the Court in Harris v HM Advocate. There had to be a very close temporal link...
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