Wotherspoon v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Drummond Young,Lord Turnbull |
| Judgment Date | 23 August 2017 |
| Neutral Citation | [2017] HCJAC 69 |
| Court | High Court of Justiciary |
| Docket Number | No 7 |
| Date | 23 August 2017 |
Lord Justice-General (Carloway), Lord Drummond Young and Lord Turnbull
Ferguson v Carnochan (1889) 2 White 278
Gough v UK (49327/11) (2015) 61 EHRR 8; 2015 SCCR 1; 38 BHRC 281
Lucas v UK (39013/02) [2003] ECHR 717
Montgomery v Harvie [2015] HCJAC 2; 2015 JC 223; 2015 SLT 106; 2015 SCL 285
Russell v Thomson [2010] HCJAC 138; 2011 JC 164; 2011 SCCR 77; 2011 SCL 295; 2011 GWD 2–89
Smith v Donnelly 2002 JC 65; 2001 SLT 1007; 2001 SCCR 800
Stewart v Lockhart 1991 SLT 835; 1990 SCCR 390
Wallace v Thomson [2009] HCJAC 25; 2009 SCCR 421; 2009 SCL 1035; 2009 GWD 30–482
Wingate v McGlennan 1992 SLT 837; 1991 SCCR 133
Justiciary — Crime — Breach of the peace — Male wearing bra within own home but in public view — Whether conduct alarming and disturbing to any reasonable person and threatening serious disturbance to community — Whether breach of the peace
David Wotherspoon was charged at the instance of Moira Orr, procurator fiscal at Glasgow, on a summary complaint libelling a charge of breach of the peace. On 8 July 2016, he was convicted of the charge by the sheriff at Glasgow. He appealed against his conviction to the Sheriff Appeal Court which, on 14 February 2017, refused the appeal. The appellant appealed to their Lordships in the High Court of Justiciary.
The appellant was charged on summary complaint with breach of the peace. He had been observed, on various occasions, either at his front door or by the windows of his flat, bare-chested but wearing a bra. He was convicted and appealed to the Sheriff Appeal Court which refused the appeal. The appellant appealed to the High Court of Justiciary and argued that his conduct was not severe enough to cause alarm and serious disturbance to the community.
Held that: (1) to constitute a breach of the peace, the conduct must be genuinely alarming and disturbing to any (not just one, some or many) reasonable person, the potential disturbance must be serious (paras 23, 26); (2) while the appellant's conduct may have been exhibitionist, provocative or even perverse, there had been no evidence that it presented as genuinely alarming and disturbing to any reasonable person or that it threatened serious disturbance to the community (paras 25–27); and appeal allowed.
Observed that in the context of summary appeals, it was critical that the drafting of a stated case and the subsequent procedure thereon complied with the applicable rules (para 24).
Smith v Donnelly 2002 JC 65 applied.
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Carloway), Lord Drummond Young and Lord Turnbull, for a hearing.
At advising, on 23 August 2017, the opinion of the Court was delivered by the Lord Justice-General (Carloway)—
Opinion of the Court—
[1] On 8 July 2016, at Glasgow Sheriff Court, the appellant was convicted of a charge which libelled that:
‘[O]n various occasions between 01 January 2015 and 08 August 2015, … at … Rutherglen you … did conduct yourself in a disorderly manner, stand in your house in full view of the lieges whilst wearing female underclothing, rub your nipples, place the lieges in a state of fear and alarm and commit a breach of the peace.’
On 5 August 2016, the court imposed a community payback order with a supervision requirement of 18 months.
[2] The issue raised in the appeal to this court is, ultimately, whether the appellant's behaviour amounted to a breach of the peace, in terms of the test in Smith v Donnelly.
[3] The application for a stated case specified the matter which the appellant wished to bring under review as:
‘2 … a. The sheriff erred in law in repelling the Defence no case to answer submission and misdirected himself on the requirements for a conviction of breach of the peace’.
The stated case does not pose a question relating to that matter, at least in so far as directed to the no case to answer submission. The questions are whether (1) the sheriff was entitled to hold that the appellant's conduct constituted a breach of the peace and (2) on the facts stated, the sheriff was entitled to convict. Although these questions may raise ‘virtually the same’ issues as one directed to a no case to answer submission (see Wingate v McGlennan (Lord Justice-Clerk (Ross), p 839J), that will not be the case where, as here, there are material differences in the sheriff's findings in fact and his narrative of the evidence. In this case, there was no attempt at challenging any of the findings in fact by the appellant by adjustment. That being so, following the form of the questions, there ought to be little or no recourse to that narrative. The case, ie the manner in which the questions should be answered, ought to be capable of resolution simply by reference to the facts found and without recourse to any other material. However, as will be seen, material differences between the findings in fact, the sheriff's narration of the evidence, which he appears to have accepted, and the...
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McConachie v Shanks
...16 R (J) 93 Smith v Donnelly 2002 JC 65; 2001 SLT 1007; 2001 SCCR 800 Wotherspoon v Orr sub nom Wotherspoon v Procurator Fiscal, Glasgow [2017] HCJAC 69; 2018 JC 79; 2017 SCCR 505; 2017 SCL 955; 2017 GWD 30–476 Justiciary — Crime — Breach of the peace — Stranger winking, smiling and gesturi......