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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Paterson v. Her Majesty's Advocate [2008] ScotHC HCJAC_18 (25 April 2008) URL: http://www.bailii.org/scot/cases/ScotHC/2008/HCJAC_18.html Cite as: [2008] HCJAC 18, 2008 GWD 14-259, [2008] ScotHC HCJAC_18, 2008 SCCR 605, 2008 SLT 465, 2008 JC 327

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Osborne

Lord Nimmo Smith

[2008] HCJAC 18

Appeal No: XC193/06

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL AGAINST CONVICTION

ALEXANDER PATERSON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Shead, Thomson; McClure Collins, Edinburgh

Alt: Mackay, A.D.; Crown Agent

25 April 2008

The procedure

[1] The appellant was indicted in the Sheriff Court at Hamilton on seven charges. These were in the following terms:

"(1) on 1 May 2004 [at an address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [SR], born 28 June 1991 ... and did place your hand around her waist, pull her towards you, touch her bottom, squeeze her bottom with your hand and press your private parts against her:

CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1965, section 6;

(2) on 25 July 2004 [at another address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards the said [SR], born 28 June 1991, a girl then of or over the age 12 years and under the age of 16 years, and induce her to sit on your knee, place your hands under her clothing, touch her back, touch her stomach and repeatedly attempt to touch her breasts:

CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1995, section 6;

(3) on 25 July 2004 [at the last mentioned address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [RR], born 13 June 1995 ... and did place your hands around her waist, and pull her towards you and press your body against her;

(4) between 1 February 2004 and 31 March 2004, both dates inclusive, [at a further address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [SL], born 22 April 1994 ... and did place your hands beneath the bed clothes touch her leg and expose your naked private member;

(5) on 1 April 2004 at Netherton Industrial Estate, Wishaw, you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [NR], born 30 January 1987 ... and did induce her to sit on your knee causing your private member to become erect and hold her hands tightly:

CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1995, section 6;

(6) between 1 May 2004 and 31 August 2004, both dates inclusive, [at the first-mentioned address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [NR], born 30 January 1987 ... and did place your hand around her waist, did squeeze her tightly, pull her towards you and press your private parts against her:

CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1995, section 6;

(7) on various occasions between 1 February 2004 and 12 September 2004, both dates inclusive, [at the second-mentioned address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [JD], born 1 December 1992 ... and did lift her up, rub your body repeatedly against her, place your hands under her clothing and touch her body;".

[2] At a first diet held on 29 November 2005 the sheriff, on the motion of the defence, discharged the previously fixed diet of trial for the sitting commencing on 12 December 2005 and adjourned the diet of trial to the sitting commencing on 23 January 2006. He also assigned 11 January 2006 as a continued first diet. The case called at that diet when certain procedural matters were dealt with. Neither at the first diet nor at its continuation was any objection to the charges, on the grounds of relevancy or otherwise, taken.

[3] The case was called on 24 January 2006 within the sitting to which it had been assigned. By that stage it had become apparent to the prosecutor and the defence that there was something untoward about charges (5) and (6). Each bore to be a charge of contravention of section 6 of the Criminal Law (Consolidation)(Scotland) Act 1995 which renders criminal certain indecent behaviour towards a girl aged between 12 and 16. On the face of each of charges (5) and (6) at the dates libelled the complainer was, according to the date of birth libelled, over the age of 16. That date of birth was accurate.

[4] The prosecutor sought to deal with this difficulty by moving the court to allow charges (5) and (6) to be amended. The effect of the amendment, if allowed, would have been, while leaving the averments of particular conduct unaltered, to translate the charges from contraventions of the statute to allegations of breach of the peace. Opposition to such amendment was made on behalf of the appellant. It was contended that the amendment proposed was not within the scope of the court's powers under section 96 of the Criminal Procedure (Scotland) Act 1995 and in any event should not be allowed. Notwithstanding that opposition, the sheriff (Sheriff Welsh) allowed the indictment to be amended as proposed. He then continued the case to the following day. After sundry further procedure, including a reassignment of the trial diet to the sitting commencing on 30 January, the case called for trial on that day. After trial, during the course of which the prosecutor made certain further amendments to the libel and withdrew charge (3), the appellant was convicted on the remaining charges. The terms of the charges upon which he was so convicted were:

"(1) on 29 or 30 June 2004 [at an address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [SR], born 28 June 1991 ... and did place your hands around her waist, pull her towards you, touch her bottom, squeeze her bottom with your hand:

CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1995, section 6

(2) on 6 August 2004 [at another address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards the said [SR], born 28 June 1991, a girl then of or over the age of 12 years and under the age of 16 years, and induce her to sit on your knee, place your hand under her clothing, touch her back, touch her stomach and repeatedly attempt to touch her breasts:

CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1995, section 6;

(4) between 1 February 2004 and 28 February 2004, both dates inclusive, [at a further address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [SL], born 22 April 1994 ... and did place your hands beneath the bedclothes touch her leg and expose your naked private member;

(5) on 1 April 2004 at Netherton Industrial Estate, Wishaw, you ALEXANDER PATERSON did induce [NR], born 30 January 1987 ... to sit on your knee causing your private member to become erect and did conduct yourself in a disorderly manner and did commit a breach of the peace;

(6) between 1 May 2004 and 31 August 2004, both dates inclusive, [at the first-mentioned address in Wishaw] you ALEXANDER PATERSON did place your hands around [NR's], born 30 January 1987 ... waist, did squeeze her tightly, pull her towards you and did conduct yourself in a disorderly manner and did commit a breach of the peace;

(7) on two occasions between 1 July 2004 and 30 September 2004, both dates inclusive, [at the second-named address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [JD], born 1 December 1992 ... and did lift her up, rub your body repeatedly against her, place your hands under her clothing and touch her body;".

[5] The appellant sought leave to appeal, initially upon two grounds. These in summary were (1) that the amendments made changed the character of the offences (and so were not within the scope of the amending power) and that, in any event, the sheriff had erroneously exercised his discretion in allowing the amendments and (2) that the erroneous allowance of evidence in relation to charges (5) and (6) had led to a miscarriage of justice also in relation to the remaining charges. Leave to appeal was granted on these grounds.

[6] The appellant subsequently sought and obtained leave to add three further grounds (grounds 3, 4 and 5). Argument has already been heard on ground 3 and that ground rejected. It remains to deal with grounds 1, 2, 4 and 5. Ground 4 (directed only against conviction on charges (5) and (6)) is that the evidence on these charges was insufficient in law to establish a breach of the peace. Ground 5 is that the sheriff misdirected the jury in relation to what constituted a breach of the peace.

[7] Section 96 of the Criminal Procedure (Scotland) Act 1995 provides:

" ...

(2) It shall be competent at any time prior to the determination of the case, unless the court see just cause to the contrary, to amend the indictment by deletion, alteration or addition, so as to -

(a) cure any error or defect in it;

(b) meet any objection to it; or

evidence.

(3) Nothing in this section shall authorise an amendment which changes the character of the offence charged ... ".

Submissions for the appellant

[8] Mr. Shead, in developing his submissions on the first ground of appeal, argued that there were two situations in which amendment was not empowered under section 96: first, where the proposed amendment changed the character of the offence charged (and so was excluded by section 96(3)) and, secondly, where the original charge was fundamentally defective (it not being possible to amend a charge which was itself null). On the latter aspect reference was made to Stevenson v McLevy (1879) 4 Coup. 196. Charges (5) and (6) as libelled were, it was submitted, fundamentally null and could not be amended. Dyce v Aitchison 1985 SLT 512 was distinguishable. Shaw v Smith 1979 JC 51 was more in point. Reference was also made to Aitkenhead v Cuthbert 1962 JC 12. The proper scope for any amendment was where something had gone wrong in the course of a trial; here the prosecutor's proper course of action would have been to withdraw the libel and start again. At an appeal stage the fact that no objection to the relevancy had been taken did not bar the court from quashing a conviction which disclosed no crime at all (Jones v Carnegie 2004 SCCR 361 at par. [43], overruling Cochrane v HM Advocate 2002 SCCR 1051). The focus of a charge of lewd and libidinous practices, whether at common law or under section 6 of the Criminal Law (Consolidation)(Scotland) Act 1995, was on conduct directed against a complainer; the focus of a charge of breach of the peace was on conduct towards the lieges. The latter was a public order offence. Reference was made to Smith v Donnelly 2001 SCCR 800. The offences were different in character and each involved a different mens rea. The circumstance that there was no difference in the specific conduct alleged did not mean that the charges were not different in character. The classification of the averred facts was also important. In a statutory context a change in the factual basis of the charge, albeit still within the same subsection, had been held, under the equivalent provisions of the Criminal Procedure (Scotland) Act 1975, to change the character of the offence (MacArthur v MacNeill 1986 SCCR 552). Here the Crown had sought to convert what, given the complainer's age, could not be a contravention of the statute into an offence at common law. That was illegitimate. It was not competent to transform into a libel what never was a libel (Macintosh v Metcalfe (1886) 1 White 218, per Lord McLaren at page 224).

[9] As regards the fourth ground of appeal (insufficiency of evidence on charges (5) and (6)), it did not matter that no submission of insufficiency had, in relation to charge (5), been taken at the trial (Farmer v Guild 1991 SCCR 174, at pages 177-8). What constituted breach of the peace as an offence not open to Convention challenge on the ground of lack of sufficient definition had been laid down in Smith v Donnelly, as approved by a full bench in Jones v Carnegie at paras. [9] and [12]. The test identified in Smith v Donnelly at page 807A-B was cumulative: the conduct had to be severe enough to alarm ordinary people and threaten serious disturbance to the community (Dyer v Hutchison 2006 SCCR 377; Dyer v Brady 2006 SCCR 629). It was a public order offence. Reference was made to Webster v Dominick 2003 SCCR 525, where the crime of public indecency had been discussed. Reference was also made to Raffaelli v Heatly 1949 JC 101, Paterson v Lees 1999 SCCR 231, especially per Lord Sutherland at page 235F-G, and Young v Heatly 1959 JC 66. In any event, the sheriff had gone beyond the scope of his legitimate discretion in allowing the amendment in question.

[10] As regards the fifth ground of appeal, the sheriff had misdirected the jury as to what constituted a breach of the peace. He had told them that:

" ... the conduct must be flagrant and severe enough to cause alarm to any ordinary person or threaten serious disturbance to the community if anyone were to learn about it or discover it".

The disjunctive ("or") had again been used in the immediately following sentence. The fact that the sheriff had later said that the jury had to be satisfied that in the circumstances in which the libelled behaviour, if proved, took place "that was or was likely to be genuinely alarming and seriously disturbing to any ordinary reasonable person" had not cured the misdirection. By defining the crime in terms of the disjunctive the sheriff had left it open to the jury, if satisfied that the complainer had reasonably been alarmed by the conduct, to find the appellant guilty without going on to consider whether this had had any public order consequences.

[11] As regards ground of appeal 2, there had been introduced illegitimately into the trial evidence of the conduct libelled in charges (5) and (6). The prosecutor had here relied on the Moorov doctrine. While it was not disputed that there was a sufficiency of evidence on charges (1), (2), (4) and (7) without the need to found on the evidence directed to charges (5) and (6), it could not be known to what extent the jury had, when considering the first group of charges, relied on the evidence directed to the charges illegitimately before them. The convictions on all the charges should accordingly be quashed.

Submissions for the Crown

[12] The Advocate depute, responding first in relation to the fourth ground of appeal, submitted that there was sufficient evidence in law to warrant conviction on charges (5) and (6). Smith v Donnelly had to be read in the context of the decisions upon which it rested - in particular, Ferguson v Carnochan (1889) 2 White 278, Raffaelli v Heatly and Young v Heatly. Lord Justice Clerk Macdonald's reference in Ferguson to conduct which, if continued, "might cause serious disturbance to the community" pointed to the potentiality of disturbance in the community, not to actual such disturbance. That was why the conduct in private discussed in Young v Heatly constituted a breach of the peace. Lord Justice Clerk Thomson in Raffaelli v Heatly has spoken of conduct "which might reasonably be expected to lead to the lieges being alarmed or upset or tempted to make reprisals at their own hand". Much turned on the particular circumstances but here the conduct in charge (5) had taken place in a motor car stationary in a public place and in the presence of the complainer's younger sister and in charge (6), albeit in a private house, in a room adjacent to the room in which the complainer's parents were sitting. A more stringent approach might be required to conduct in private than to conduct in a public place; and also to conduct which did not give rise to alarm or annoyance as against conduct which did (Young v Heatly, per Lord Justice General Clyde at page 70). It was sufficient that there was a realistic risk of the conduct being discovered (Jones v Carnegie, per Lord Justice General Cullen at para. [12]). It was important to have regard to the whole particular facts and circumstances (Dyer v Hutchison, at para. [25]).

[13] As regards the fifth ground of appeal, it was not accepted that the use of the disjunctive by the sheriff in defining the crime constituted a misdirection. The two elements, namely, conduct severe enough (1) to cause alarm to ordinary people and (2) to threaten serious disturbance to the community were saying much the same thing. The Lord Justice Clerk's formulation in Ferguson v Cronochan suggested that serious disturbance to the community was not essential to proof of the charge.

[14] As regards the first ground of appeal, it was important to notice that it was not necessary in an indictment or complaint to specify a nomen iuris (Criminal Procedure (Scotland) Act 1995, Schedule 3, para 2). It was also lawful in circumstances such as the present to convict of a common law offence although the charge was of a statutory contravention (Schedule 3, para. 14). Accordingly, even had no amendment been made, it would have been open to the jury to convict the appellant on each of charges (5) and (6) of breach of the peace. The procedure adopted by the prosecutor, namely, seeking amendment prior to the commencement of the trial, was fair to the appellant by giving him notice not only of the facts alleged but also of the criminal classification upon which the prosecutor intended to found. The power to amend under section 96 was very wide (Dyce v Aitchison, per Lord Grieve at page 513). If the species facti remained the same, the character of the offence was not changed (Dyce v Aitchison, per Lord Justice Clerk Wheatley at page 513). Reference was also made to Mackenzie v Brougham 1985 JC 15, Cook v Jessop 1990 JC 286 and Wadbister Offshore Limited v Adam 1997 JC 56. There was no possible prejudice to the appellant in what had occurred. The allowance of amendment had been well within the discretion of the sheriff. On the question of what constituted a "fundamental nullity" reference was made to Robertson v Frame 2006 SCCR 151, per Lord Rodger of Earlsferry at para. [49].

[15] As regards the second ground of appeal, this was dependent on the first ground being sustained. There had, in any event, been no miscarriage of justice in this respect. All of the charges involved young girls, charges (5) and (6) being perhaps the least serious. Before the jury could have convicted on charges (1), (2), (4) and (7) they would have required to have accepted as truthful and reliable the evidence of the particular complainers on these charges. The evidence on charges (5) and (6) would have been admissible before the jury even if the charges had stood unamended.

Discussion

[16] Charges (5) and (6) on the indictment as framed were on their face each irrelevant. They alleged contraventions of section 6 of the Criminal Law (Consolidation)(Scotland) Act 1985 in relation to a young person who was over the age of 16 when the alleged offences were said to have taken place. With a view to remedying that situation the prosecutor moved the court to allow these charges to be amended to the effect of deleting the references to the statute and substituting references in conventional terms to the common law offence of breach of the peace; no change was sought to be made to the averments of the particular conduct founded on. The motion was made before the commencement of the trial. Amendment at that stage, if otherwise competent, was permissible, it being so "at any time prior to the determination of the charge" (section 96(2)). If the conduct alleged on its proof amounted not to a contravention of the statute but to breach of the peace, it would have been lawful to convict of that common law offence (1995 Act, Schedule 3, para. 14). Proposing amendment before the trial commenced was, on the face of it, fair to the appellant; leaving the matter until all the evidence had been led would potentially have been less fair to him. In the event several days passed between the amendment being made and the commencement of the trial. It was not suggested that there was in fact any prejudice occasioned to the appellant by the amendment being allowed at the stage when it was. There may also have been good reasons in the public interest (for example, with respect to arrangements for the attendance of young and vulnerable witnesses or otherwise) why this procedure, rather than withdrawal of the libel and recommencement of proceedings, was adopted. In these circumstances, if it was competent for the sheriff to allow the proposed amendment, it was clearly well within his discretion to do so.

[17] It was submitted that it was not competent for Sheriff Welsh to proceed as he did. That submission was based on the contentions that charges (5) and (6) as libelled were fundamentally null (and so incapable of amendment) and, in any event, that amendment was excluded by the first part of section 96(3). In Stevenson v McLevy Lord Justice Clerk Moncrieff, under reference to section 5 of the Summary Procedure (Scotland) Act 1864, said at pages 203-4:

"However wide the power of amendment under the Summary Procedure Act may be, it cannot extend to the essential requisites of a criminal charge. Time and place are both essential, for very obvious reasons, to the defence of the accused; and I cannot think that after the proof of the facts had been concluded it could possibly be competent to introduce the specification of a locus to which the proof had not been addressed."

Lord Young observed that it was "one of the fundamental rules of our law that any complaint charging an offence shall state the locus where the offence was committed" (page 201); he appeared to have rested that view on the circumstance that a sheriff could not proceed at all unless the fact that he had jurisdiction appeared on the face of the complaint. In Thomson, Petitioner 1997 SLT 322 it was observed, under reference to Stevenson v McLevy, that there was ample authority for the proposition that specification of a locus was an essential element of any criminal charge (Lord Justice Clerk Ross at page 323) - with the effect that charges omitting a locus were incompetent and amounted to a fundamental nullity (page 324). In Robertson v Frame at para. [49] Lord Rodger described the term "fundamental nullity" as "conclusionary in nature".

[18] While it may be difficult to extract from the authorities what amounts to a fundamental nullity, we were referred to no authority to the effect that, where a statutory charge is irrelevantly brought but where the same facts could constitute an offence at common law, the charge is fundamentally null. In our view it is not; it is simply irrelevant. The particular facts alleged on each of charges (5) and (6), as libelled, plainly could, depending on their proved context, amount to a breach of the peace. We deal later with whether there was in the event sufficient evidence to prove these offences. We accordingly reject the first of Mr. Shead's contentions under the first ground of appeal.

[19] In Dyce v Aitchison Lord Justice Clerk Wheatley observed: "As the species facti remain the same, the character of the offence has not been changed." Amendment was accordingly held to be competent. Lord Grieve emphasised that, for the purposes of amendment, it was the species facti set out in the charge and not the nomen iuris attached to it which was critical. In Mackenzie v Brougham Lord Justice General Emslie, under reference to the equivalent statutory provision, said at pages 18-19:

"All that [the provision] is designed to ensure is that where it appears that a charge purports to libel a particular category of offence known to the law, and it matters not whether it has done so in a wholly relevant and specific way, no amendment to such a charge which is proposed shall be allowed which would have the effect by changing the species facti or otherwise, of altering the character of the offence to which the charge in its original form appears to be directed."

The expression "or otherwise" suggest that there may be circumstances in which an alteration other than of the species facti may be such as to change the character of the offence. We do not accordingly exclude the possibility that some such other change might be prohibited by the statute. However, while there are important differences between the indicia of a contravention of section 6 of the 1995 Act and of the common law offence of breach of the peace, these are not in the circumstances of this case sufficiently radical, in our view, to change the character of the offence. It is essentially a matter of degree. Here it is the same conduct involving the same complainer at the same time and place. It is not necessary to specify by any nomen iuris the offence which is charged (Schedule 3, para. 2). The circumstance that, in furtherance of para. 14 of Schedule 3, a conviction for breach of the peace would have been lawful where the charge libelled was under section 6, also tends to confirm that amendment here was within the scope of section 96. In these circumstances the first ground of appeal must be rejected.

[20] It is convenient now to deal with the fourth ground. A narrative of the evidence adduced by the Crown in support of charges (5) and (6) is necessary for the purpose of addressing this ground. The appellant, who at the date when the offences are alleged to have been committed was 37 years of age, was a friend of the parents of NR, who was herself then 17. She was anxious to learn to drive. As at April 2004 NR's father was in hospital and so unable to assist. The problem having been mentioned during a hospital visit when the appellant was present, he arrived at NR's home at about 8.30 p.m. that evening and asked whether she wanted to go for a driving lesson. NR at first declined but eventually agreed to go if her younger sister (then aged 15) accompanied them. The appellant reluctantly accepted that the sister should join them. The appellant drove the vehicle to the industrial estate mentioned in charge (5). It was dark. NR was at first in the passenger front seat and her sister in the rear. She then took the appellant's place in the driver's seat. NR's initial attempts to drive the car resulted in her stalling its engine on several occasions. At one point the appellant suggested that it would be better if, as he sat in the driver's seat, she sat on his knee. She initially declined to do so but the appellant insisted that this was a "better way to learn". She eventually did sit on his knee as he sat in the driver's seat. The driver's door was open. In evidence she stated that she could feel the appellant's penis. He was having an erection as she sat on his knee. There was perhaps some little contact between her hands and his. She then jumped off his knee. She said in evidence that she felt "dirty and scared". She returned to the front passenger seat. No words were exchanged, other than that NR asked that they go home. The appellant was displeased. Eventually he drove the girls back home. When NR got off the appellant's knee, her sister was aware, she testified, that something was wrong, though she did not at the time know what it was. She in effect confirmed the remainder of the narrative given by NR.

[21] The incident referred to in charge (6) occurred in NR's home some months later. The appellant called. He, NR and NR's parents were in the livingroom when NR left to go to the kitchen to make tea or coffee. The appellant followed her. Although the kitchen was large, he stood very close to her. He asked her for a cuddle. He leaned into her, when she was against the kitchen worktop. She found what had then happened hard to describe in evidence but it had made her feel scared. She testified:

"I just froze. He cuddled me but it wasn't a cuddle. He'd hold you like you were in a relationship. He pulled me very close to his body. It was very tight. I felt scared and dirty."

[22] In Smith v Donnelly this court examined the existing authorities on breach of the peace with a view to determining whether bringing proceedings on such a charge, as developed, violated the requirements of Article 7 of the Convention (no punishment without law). The court held that, on a sound interpretation of these authorities, the definition of the crime was such as to meet the requirements of the Convention. Taking Ferguson v Carnochan as its starting point, it held that it was clear that what was required to constitute the crime was "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". NR spoke to actual alarm in response to the appellant's conduct on each of the two occasions. In the context of behaviour towards a 17 year old girl by a man 20 years her senior the conduct was, in our view, severe enough to cause alarm to ordinary people. It met the test, identified in the final sentence of paragraph [17] of Smith v Donnelly, of being conduct "which does present as genuinely alarming and disturbing, in the context, to reasonable people". It is appropriate to view the later conduct in the context of what had occurred several months earlier. On the assumption that for sufficiency it is necessary that the conduct should additionally "threaten serious disturbance to the community", it is important to notice that the conduct alleged in charge (5) occurred in a public place and that that in charge (6), although on private property, occurred in relatively close proximity to where NR's parents were sitting in an adjacent room. The conduct does not require to cause serious disturbance to the community. It is sufficient that it threatens such disturbance. Such conduct by a mature man towards an adolescent girl was such that, if discovered, was likely to cause a serious reaction among other adults. In these circumstances the nature of the conduct was such that, if proved, it constituted on each occasion breach of the peace. As to proof of such conduct, the Crown was entitled to rely on evidence of similar conduct adduced in relation to the other charges. In these circumstances the appellant's fourth ground of appeal must be rejected.

[23] The fifth ground of appeal concerns the directions given by the presiding sheriff (Sheriff Small) to the jury in relation to breach of the peace. In his charge he referred to the various crimes charged on the indictment and indicated that he would define each of them to the jury. He began with breach of the peace. In the course of that definition he said:

" ... it could be conduct that is active or passive, it could involve actual harm or none, but the conduct must be flagrant and severe enough to cause alarm to any ordinary person or threaten serious disturbance to the community if anyone were to learn about it or discover it. It involves causing substantially more than mere irritation or annoyance, it is conduct which in the particular circumstances in which it occurred would be genuinely alarming or disturbing to any reasonable person who witnessed it."

Having referred to certain other aspects of the charge, the sheriff concluded that, to return a verdict of guilty on charges (5) and (6), the jury would have to be satisfied that the appellant behaved in the way described in these charges

"and that in the circumstances in which that behaviour took place that conduct was or was likely to be genuinely alarming and seriously disturbing to any ordinary reasonable person".

It is clear from these extracts that at two adjacent and important sections of his definitional directions the sheriff used the disjunctive "or" rather than the conjunctive "and". The later passage where the conjunctive is used does not bear to be a correction of what was said earlier. That later passage reflects to some extent, though not precisely, what was said in the final sentence of paragraph [17] of Smith v Donnelly. The earlier passages reflect to some extent the language in the fourth sentence of that paragraph but importantly do not replicate the conjunctive used there. The Advocate depute argued that the two elements conjunctively expressed in that fourth sentence were each in effect saying the same thing in different words and that the use of the disjunctive was accordingly not a misdirection. We reject that argument. Although the two elements in the conjunctive expression may include common elements and the same evidence in particular circumstances may cover both, they focus on different things. In particular, the former element highlights the objective character of relevant alarm while the latter highlights the community aspect of the offence. Any definition of breach of the peace should use the conjunctive. It was the conjunctive which was used by Lord Justice Clerk Macdonald in the passage in Ferguson v Carnochan (as reported at 16R(J) at page 9) under discussion in paragraph [17] of Smith v Donnelly. The effect (actual or potential) on the public peace is emphasised in Ferguson v Carnochan and re-emphasised in Jones v Carnegie, especially at paras. [9] - [11]. In Dyer v Hutchison and Dyer v Brady this court, in giving its decision, quoted (at para. [16] of each Opinion) Lord Coulsfield's conjunctively expressed language in Smith v Donnelly. In these circumstances we are satisfied that the sheriff misdirected the jury as to the definition in law of breach of the peace.

[24] The Advocate depute did not submit that, if there had been a misdirection in that respect, there had nonetheless been no miscarriage of justice. We are persuaded that there was such a miscarriage. If the jury in this case was left with the impression that it was sufficient that one of the two disjunctively expressed elements would suffice for proof of the charges, they may well have concentrated their attention on the effect upon NR and disregarded, as unnecessary, consideration of the threat of disturbance to the community. In these circumstances we sustain the fifth ground of appeal.

[25] As we have rejected the first ground of appeal, the second ground does not arise.

[26] We shall accordingly sustain the appeal to the extent of quashing the conviction on charges (5) and (6) but quoad ultra shall refuse the appeal. A consequential issue may arise as to penalty.

Scottish High Court of Justiciary Decisons

Lord Justice General

Lord Osborne

Lord Nimmo Smith

[2008] HCJAC 18

Appeal No: XC193/06