APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway CGB Nicolson CBE QC Sheriff Principal Lockhart	[2009] HCJAC 27 Appeal No: XJ1321/08 OPINION OF THE COURT delivered by LORD CARLOWAY in the stated case in causa PAUL McINTYRE Appellant; against THE PROCURATOR FISCAL, PERTH, Respondent: _______

Appellant: Mason; Drummond Miller LLP (for Condies, Perth)

Respondent: Ferguson QC, AD; The Crown Agent

27 March 2009

1. The Stated Case

[1] On 26 August 2008, at the Sheriff Court in Perth, the appellant was convicted on a summary complaint which libelled that:

"on 2 May 2008 at Flat 5, 7 Drumhar Court, Perth, you ... [did] conduct yourself in a disorderly manner shout and swear at the occupier there and at paramedics who were then treating her and commit a breach of the peace".

The appellant requested a stated case on the grounds:

"a) That the ... Sheriff erred in law by repelling the submission of no case to answer ... in particular by holding that the evidence of the conduct of the Appellant was sufficient in law to amount to a breach of the peace; and

b) That the ... Sheriff erred in law by finding that there was sufficient credible evidence of the commission of the offence of breach of the peace and convicting the Appellant of the charge as libelled".

[2] The Sheriff found in fact that, at about 8 pm on 2 May 2008, two paramedics employed by the Scottish Ambulance Service attended the flat in Perth in response to an emergency "999" call. They found a woman in a small room in the flat suffering from a panic attack and in a state of distress. After attending to her for ten minutes or so, and having succeeded in calming her down, the appellant "stormed into the flat and into the room... He commenced shouting and acting in an aggressive manner" [ff 2]. He swore at the woman and made derogatory remarks towards her, calling her an idiot. He demanded to take their child away. The woman reverted to a distressed state. On being asked by the paramedics to calm down and leave, so that they could continue with their work, the appellant told them that it was none of their business. He swore at them and refused to leave. He did leave when the police were called. The incident had lasted about five minutes. The Sheriff also found that:

"6. As a result of the Appellant's ... behaviour, both the paramedics and [the woman] were alarmed and that reaction was a reasonable one in the circumstances.

7. The ... behaviour of the Appellant constituted a breach of the peace".

[3] The Sheriff narrates the evidence of the two paramedics, who spoke to the facts in the libel, and then records the nature of the "no case to answer" submission as follows:

"The Appellant's solicitor submitted that the Appellant's actions did not amount to a breach of the peace. He referred to the decisions in Dyer v Brady and Others 2006 SCCR 629 and Smith v Donnelly 2001 SCCR 800. Conduct which alarmed persons was insufficient, it had not caused a serious disturbance. In reply the Procurator Fiscal depute submitted that the actions of the Appellant had to be looked at in context. He had arrived unannounced and was aggressive from the start. The Appellant was likely to be aware of [the woman's] condition. The paramedics were concerned for the safety of themselves and [the woman]".

In giving his reasons for repelling the submission, the Sheriff first makes reference to the dicta in Smith v Donnelly (supra at para 17) that the conduct requires to be "genuinely alarming and disturbing in its context, to any reasonable person" and that, if there is no evidence of actual alarm, the conduct must be "flagrant". He refers also to the dicta in Dyer v Brady (supra at para 16) that regard has to be had to the nature and quality of the conduct, its likely consequences and context. He then states:

"I was satisfied that there was sufficient evidence to satisfy the tests in both these decisions. The Appellant's actions clearly caused alarm and distress to [the woman]. [One paramedic] said he had been concerned for her safety and that of his colleague and himself as a result of the Appellant's behaviour. Although [the other paramedic] did not specifically say that, his reaction in contacting his control to call the police seemed to me to allow me to infer that he was similarly concerned. The four persons were in a small room, the Appellant had burst into the flat and was shouting, swearing, and making derogatory remarks. He was aggressive. I considered that the alarm and concern said to have been caused by the Appellant's actions was a reasonable reaction to his behaviour".

[4] The appellant gave evidence. Although not found in fact, the Sheriff recorded that he was a well built man and over six feet tall. The appellant gave a history of having been telephoned to come to the flat by the woman, who had been in a state of panic. He had been in a relationship with the woman for about thirty months and they had a young daughter. The appellant said that he accepted that the flat was not "his house". It is not clear to what extent the Sheriff accepted these aspects of the appellant's evidence, although he made it clear that he preferred the testimony of the paramedics to the appellant's version of events in the flat. In giving reasons for convicting the appellant, beyond those already mentioned in connection with the no case to answer submission, the Sheriff adds, although again does not find in fact, that the appellant knew of the woman's condition and that his conduct would cause her alarm. Furthermore, the Sheriff comments that there was a greater likelihood of aggression on the appellant's part causing alarm given his physical presence. He adds:

"If verbal aggression turned to physical aggression, the prospect was more daunting".

[5] The Sheriff poses the following questions:

"1. Was I entitled to repel the submission...?

2. On the evidence was I entitled to make findings in fact 6 and 7?

3. On the facts stated, was I entitled to convict the appellant?

There does not appear to have been any significant adjustment to the case. From its final form, it can be seen that Ground of Appeal "b)", which related to credibility was not pressed. The inevitable answer to question 3 would be in the affirmative, if finding 7 survived. The issues for the Court were thus focussed upon questions 1 and 2.

2. The Progress of the Appeal and Submissions

[6] Leave to appeal was refused at first sift on the basis that "the Sheriff was entitled to hold that the proved conduct of the appellant amounted to Breach of the Peace". However, leave was granted at second sift, it being explained that:

"While there is authority to the effect that a dual test is required for breach of the peace (including a public element) leave is granted ... to explore whether abuse directed against public servants (e.g. members of the ambulance service) and their patient was sufficient to constitute those elements, albeit in a private house".

The Court was informed that this decision had followed an Opinion of Counsel which had been obtained after the first sift decision and focussed on this area as a ground of appeal. The Opinion, which this Court has not seen, was not from the counsel who conducted the appeal.

[7] The appellant's submissions, not surprisingly, followed the same line as was opened up at second sift. In limine, it was suggested that Young v Heatly 1959 JC 66 may require to be revisited, as was recognised by Lord Marnoch (dissenting) in Macdonald v HM Advocate 2008 SCCR 181 at 191, following upon what was described as the dual test desiderated by Lord Coulsfield delivering the Opinion of the Court in Smith v Donnelly (supra at para [17]). That test was that the conduct required first to be "severe enough to cause alarm to ordinary people" and secondly to "threaten serious disturbance to the community". Although the first part of the test had been met, the Sheriff had failed to address the second part at all. It was obvious from the findings in fact that he had not considered it. It was recognised that, if such conduct were taking place in a flat, then it could amount to a breach of the peace if it were to be held that it was likely to be heard or observed by persons outside and was classified as likely to disturb the community. Breach of the peace was a public order offence. For an incident in private to constitute a breach of the peace, it would have to be proved that there was a risk of the conduct being discovered (Paterson v HM Advocate 2008 SCCR 605 (Lord Justice General (Hamilton) delivering the Opinion of the Court at para [22]); Jones v Carnegie 2004 SCCR 361, (Lord Justice General (Cullen) delivering the Opinion of the Court at para [12]). Reference was also made to Dyer v Hutchison 2006 SCCR 377 and Dyer v Brady (supra).

[8] Perhaps as a result of some observations from the Bench, the Advocate Depute stressed that this matter had not been focussed in the grounds of appeal as required by section 176(1)(b) of the Criminal Procedure (Scotland) Act 1995 (cf the Crown application in Dyer v Brady (supra at p 379)). In Paterson v HM Advocate (supra), it was recognised that, for a breach of the peace to be committed in private, it had to be established that the conduct "if discovered, was likely to cause a serious reaction" (para [22]). In this case, it was not disputed that the paramedics had been attending the flat in a proper and lawful way and that the appellant had behaved in a disorderly manner. What was contended now was a narrow point, namely that the Sheriff had failed to consider the second limb of the dual test. But it was an inevitable consequence of his findings in fact, as expanded by the terms of his note, that, had this matter been specifically addressed in the grounds of appeal presented to him, he would have found that such a reaction would have been provoked.

3. Decision

[9] The issue which the appellant seeks to explore is not one which was raised in the application for a stated case nor one, consequently, which has been addressed by the Sheriff. The proposition is a succinct one; that the Sheriff failed to have regard to the second leg of the dual test set out in Smith v Donnelly 2002 JC 65 (at para [17]). That leg is whether the conduct is such as would "threaten serious disturbance to the community". If it had been submitted to the Sheriff that the conduct was not such as so threatened the community, then it is strange that it has not found its way into the stated case at the point where the Sheriff narrates the submissions. If it were to be competently argued, in the context of this stated case, that the Sheriff had erred in law in not sustaining that submission, then the appellant ought at least to have proposed adjustments to the case which: (a) encapsulated the submission made; and (b) posed a question directed towards this issue. Had he done so, the Court would have the benefit of the views of the Sheriff on the submission now advanced. The Sheriff could well have stated the case in a different manner. He would have had the opportunity to make appropriate findings in fact specific to the community issue and to explain whether in fact he did or did not have regard to that aspect when deciding whether or not to convict. It is not legitimate to ask a Sheriff to state a case on one issue, or upon a general issue, and then to submit to this Court that the stated case indicates that the Sheriff did not take into account a particular matter which he was not asked to address when stating the case. Suffice it to say, the Court would find it rather surprising if, as was submitted, this very experienced Sheriff at Perth, who no doubt deals with a great many complaints of breach of the peace, was somehow unaware of the test set out in Smith v Donnelly (supra).

[10] It is not necessary to add greatly to the flurry of decisions on breach of the peace in recent times. In terms of Smith v Donnelly (supra at para [17]), a breach of the peace may occur where the conduct complained of is "severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". The conduct must be "genuinely alarming and disturbing, in its context, to any reasonable person". The need for the conduct to threaten serious disturbance is traced back in Smith v Donnelly (supra at para [17]) to Ferguson v Carnochan (1889) 2 White 278, 16 R (J) 93. The significance of the latter case to the present one is that the shouting and swearing complained of occurred in private, in the sense that the accused was in what was his own home, although the premises were also used as a public house during licensing hours. The material feature of the conduct was that it could be heard in the public street, where there were also other private houses and an hotel. Persons in the street or in their houses or staying in the hotel would be likely to hear the cacophony of noise and react accordingly, given that it was three o'clock in the morning.

[11] It is difficult to fault the analysis of a case of this type by the Lord Justice Clerk (Macdonald) and Lord McLaren in Ferguson v Carnochan (supra) as it is effectively approved in the Full Bench decision in Jones v Carnegie 2004 JC 136 (Lord Justice General (Cullen) delivering the Opinion of the Court at paras [10] and [11]). The fact that the conduct itself occurs on private property is not a decisive feature of the crime (Macdonald v HM Advocate 2008 JC 262, Lord Johnston at p 263). What is important is whether the conduct, looked at objectively, is genuinely alarming and disturbing and threatens serious disturbance to the community. The community may consist, for example, of members of the public likely to see or hear the conduct from a public or private place, including persons in the same flat where the conduct takes place (Paterson v HM Advocate 2008 JC 327, Lord Justice General (Hamilton) at para [22]).

[12] In this case, it is clear from the findings that the conduct complained of occurred in a flat in an urban area, namely Perth. Although the Sheriff did not make specific findings addressing this issue, no doubt for the reasons explored above, it is reasonable to suppose that there would be persons passing by the flat and living in the surrounding flats. Some may have observed the ambulance parked at the scene. In that context, were any member of the public to hear shouting and swearing, of the nature and duration found by the Sheriff, being apparently directed towards the occupant of the flat where the paramedics were in attendance or towards the paramedics themselves, then he would be likely to be genuinely alarmed. Such conduct would threaten serious disturbance to the community. In these circumstances, the questions must all be answered in the affirmative and the appeal refused.