"I sustained the submission. The conduct had taken place at a football match with in excess of 60,000 supporters. The respondent was within a group of approximately 7,000 Hearts' [Rangers'] supporters. The conduct was over very quickly. I did not consider that the conduct could be described as flagrant. Although the conduct could not be condoned, in the midst of the cauldron of sound which emanates from any large sports' crowd, and I felt that I was entitled to use judicial knowledge in regard thereto, I did not feel the conduct which was described would in any way be entitled to be interpreted as a standard of conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances of the football match."

It is appropriate to note here that the word "flagrant", as used by the sheriff in the foregoing passage, appears to be derived from a passage in the opinion of the Lord Justice-General in the case of Young v. Heatly 1959 JC 66. We will consider that case shortly. After the passage just quoted the sheriff then continued:

"I also considered the decision in Owens v. Procurator Fiscal, Hamilton, and it appeared to me that the conduct in the instant case was substantially less serious than the conduct advanced in the case of Owens where no breach of the peace had been held to be established. In my judgement therefore, no breach of the peace was capable of being founded on the evidence presented. I further was of the view that until there was a breach of the peace, there could be no racial aggravation of that offence given that you needed an offence before there could be an aggravation."

[12] In the case of Russell Hutchison the sheriff has noted that she was referred to the cases of Smith v. Donnelly and Jones and Others v. Carnegie and Others which were also before the sheriff in the other two cases. Having briefly summarised the submissions which were advanced before her, the sheriff then goes on to set out her reasons for sustaining the submission of no case to answer. In that regard she states:

"The conduct complained of took place within the context of a football match. Football matches are not conducted in silence. There was evidence that both factions, from their segregated positions, were shouting, swearing and gesticulating. There was no evidence of anyone being alarmed or disturbed by the actions of the respondent. Apart from the arrest of the respondent, there was no evidence of any other police action having to be taken as a result of his behaviour."

The submissions for the Crown

[13 ] In opening his submissions on behalf of the Crown the advocate depute indicated that he accepted what was said by the sheriff in the cases of Bell and Johnstone towards the end of the second passage which we have quoted in paragraph [11] above, namely that there can be no racial aggravation if there is no breach of the peace to begin with. However, later in his submissions he went on, correctly in our view, to explain that he did not thereby seek to suggest that the racial character of what was said and done could, or should, be ignored in determining whether or not what was said and done in each case amounted to a breach of the peace. All that he had been seeking to do in his opening submission was to accept that the first matter in each case must be to decide whether, having regard to all the circumstances, the conduct spoken to in evidence amounted to a breach of the peace, and only then to go on to determine whether or not that conduct, or part of it, also amounted to racial aggravation in terms of section 96 of the 1998 Act. As will be seen later, we are of the opinion that the racial character of what was said and done in the three cases presently before us is of some importance in deciding whether the conduct in each case, taken as a whole, amounts to a breach of the peace, and we are grateful to the advocate depute for making his position clear on this point. We should also add that none of the counsel who appeared for the respondents sought to challenge our view on this matter. We suspect, however, that our view may not have been shared by the sheriffs who dealt with the three cases before us, and we shall return to that later.

[14 ] The advocate depute then went on to consider in detail the reasoning of the sheriff who had heard the cases of William Bell and Derek Johnstone. He submitted that it is not clear why the sheriff had come to the conclusion that the conduct complained of in the two cases had not been "flagrant", and he went on to submit that, in the context in question, the conduct had been capable of causing fear and alarm. He submitted that the sheriff had misdirected himself in attaching weight to the fact that the conduct in question had been over very quickly, and he also submitted that the sheriff had been wrong to purport to use judicial knowledge in order to determine the level of surrounding noise at the time when the conduct took place. In any event, these were not cases where the respondents had been charged with racially aggravated harassment under section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995. In such cases it has been held (Martin v. Bott 2005 SCCR 554) that the object of the harassment must have seen or heard the conduct involved, but nothing like that is required in a charge of breach of the peace; and, consequently, the sheriff's reference to "a cauldron of sound" is of no relevance in the present cases.

[15 ] The advocate depute then went on to consider the relevant case law. He began by referring to the cases of Smith v. Donnelly and Jones and Others v. Carnegie and Others (both cited above). He submitted that they are both authority for the proposition that, in determining whether particular words or conduct amount to a breach of the peace, regard must be had to the context in which that behaviour occurs. In the present case, it was submitted, the sheriff had misdirected himself by concluding that the context of a football match was such that the conduct complained of did not amount to a breach of the peace. Football matches are often marked by disturbances; and conduct of the kind spoken to in the two cases in question could well have provoked further, or greater, disturbance on the part of other spectators.

[16 ] The advocate depute then referred to two further cases, namely Wilson v. Brown 1982 SCCR 49 and Allison v. Higson 2004 SCCR 720. In Wilson the facts were very similar to those in the present appeals in that the respondent had, at a football match, made rude gestures towards, and sworn at, opposing supporters. In allowing a Crown appeal against acquittal Lord Dunpark said (at p. 51):

"It is well settled that a test which may be applied in charges of breach of the peace is whether the proved conduct may reasonably be expected to cause any person to be alarmed, upset or annoyed or to provoke a disturbance of the peace. Positive evidence of actual alarm, upset, annoyance or disturbance created by reprisal is not a prerequisite of conviction."

Having concluded that the foregoing test was satisfied in the case under appeal, Lord Dunpark went on to say (at p. 52):

"Violence at football matches is unfortunately by no means uncommon. It is the duty of the police .... to forestall the eruption of violence whenever possible. In the course of that duty they have power to terminate provocative conduct of the nature of the respondent's in this case by arrest, if that is necessary, before it leads to violence."

The advocate depute founded on the foregoing passages not only as support for the proposition that the context of a football match is more, rather than less, likely to lead to provocative behaviour being characterised as a breach of the peace but also as support for the view that the sheriff had been wrong to attach weight to the fact that the incidents were over quickly. In the circumstances, and for the reasons given by Lord Dunpark, the police had been well entitled to take prompt action with the consequence that the incidents had, inevitably, been short-lived.

[17 ] Allison v. Higson was another football match case where weight was attached to the possibility that the actions of the appellant might provoke further disturbance, and where this Court spoke favourably of the desirability that in such cases the police should take prompt action. The advocate depute submitted that Allison lends contemporary support for the views expressed by Lord Dunpark in the case of Wilson.

[18 ] The advocate depute next turned to the unreported case of Owens v. Procurator Fiscal, Hamilton (14 June 2005), which was the third case considered by the sheriff in the cases of William Bell and Derek Johnstone. The circumstances of that case were that an Irish Republican march had been taking place in Wishaw. The march consisted of about thirty people but, in anticipation of disturbance, about three hundred and fifty police officers were on duty to patrol the march. A police helicopter was also circling overhead. The appellant was standing outside a bar in the forefront of a group of about thirty or forty people and, as the march passed in front of him, he was heard to shout "You are a fucking disgrace. God save the Queen". The appellant was convicted of breach of the peace but, on appeal, this Court "with some hesitation" reached the view that in the circumstances the conduct of the appellant was not so grave as to justify his conviction. While accepting that, at first sight, this case appears to offer some support to the respondents in the present appeals, the advocate depute submitted that it is but an example of the principle that every case must be determined having regard to its particular circumstances. In Owens there had been no racial element to what was said; and, moreover, the enormous police presence at the time significantly reduced any possibility that what had been said might have provoked a large scale disturbance. In those circumstances, it was submitted, the sheriff had been wrong to conclude that the conduct in the cases before him was substantially less serious than the conduct in Owens.

[19 ] The advocate depute then turned to the appeal in the case of Russell Hutchison. In that case he submitted that the sheriff had given no acceptable ratio for her decision. He submitted that she had quite wrongly proceeded on the basis that offensive and provocative conduct should be accepted when it occurs within the context of a football match. She had been wrong to excuse this respondent's behaviour on the basis that other people were shouting, swearing and gesticulating. If anything, that merely reinforced the likelihood that the respondent's behaviour might provoke further disturbance. The sheriff had been wrong to found on the fact that there was no evidence of anyone being alarmed or disturbed by the actions of the respondent since actual evidence of alarm is not necessarily the only test to be applied in a case of breach of the peace. Finally, the advocate depute submitted that the sheriff had been wrong to found on the fact that there was no evidence of any other police action having to be taken as a result of the respondent's behaviour. As explained in Wilson v. Brown and other cases, that could well have been so on account of the prompt action taken by the police.

[20 ] Finally, the advocate depute referred to the case of Martin v. Bott 2005 SCCR 554. That was a case where, at a football match, the appellant was found to have shouted racist remarks at football players of African racial origin. He had shouted "black bastards" and "you suck bananas" and he had made imitation monkey sounds. He was charged, and convicted, on a charge of racially aggravated harassment under section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995. On appeal it was held that the charge had not been established since, while there was evidence of alarm and distress being caused to a spectator, there was no evidence of the conduct being heard by, or having any effect on, the players in question. However, by reference to paragraph 14 of Schedule 3 to the Criminal Procedure (Scotland) Act 1995, the Court concluded that, on the facts found proved by the sheriff, it could substitute a verdict of guilty of the common law crime of breach of the peace, racially aggravated within the meaning of section 96 of the 1998 Act. The experienced solicitor advocate who represented the appellant did not dispute that the conduct in question amounted to a breach of the peace, and a conviction for breach of the peace was accordingly substituted. The advocate depute in the present appeals sought to find support in that decision.

Submissions for the respondents

[21 ] Given the order in which the advocate depute had presented his submissions, Miss Mitchell, counsel for William Bell, was the first to respond. She accepted that her client's conduct had been racist and distasteful, but she submitted that it had not been "flagrant". She went on to submit that any consideration of the potential consequences of the conduct must be mere speculation, and accordingly should not be taken into account. Simply to cause offence, she submitted, is not enough to constitute a breach of the peace. Moreover, the presence of police and stewards at the match meant that there was no risk of serious disturbance. Miss Mitchell founded on the case of Owens as supporting her submissions; and she sought to distinguish Martin v. Bott on the basis that, in that case, the issue of what constitutes a breach of the peace had not been fully focused or considered.

[22 ] Mr Forbes, on behalf of Derek Johnstone, adopted what had been said by Miss Mitchell. He went on to note that the word "flagrant", which has been used in some of the reported cases, and which had been mentioned on several occasions in the course of the present appeal, derives from a passage in the opinion of Lord Justice-General Clyde in the case of Young v. Heatly 1959 JC 66 where he said (at p. 70):

"It follows therefore that it is not essential for the constitution of this crime [i.e. breach of the peace] that witnesses should be produced who speak to being alarmed or annoyed. At the same time, however, I consider that a very special case requires to be made out by the prosecution if a conviction for breach of the peace is to follow in the absence of such evidence of alarm or annoyance. For then the nature of the conduct giving rise to the offence must be so flagrant as to entitle the Court to draw the necessary inference from the conduct itself."

Mr Forbes submitted that the conduct of his client in the present case did not meet the test of flagrancy as described by the Lord Justice-General in the foregoing passage. He also noted that in the present case the comment made by his client had not been repeated or expanded on, and he submitted that there was nothing to indicate that his client would have continued to shout in that manner if he had not been arrested. In those circumstances, it was submitted, the present Crown appeal should be refused.

[23 ] Finally, Mr Gilchrist addressed us on behalf of the respondent, Russell Hutchison. Like Miss Mitchell and Mr Forbes, he submitted that the conduct of his client did not meet the test of flagrancy, particularly since in this case what was said had not been ex facie racist and had, moreover, been provoked by the activities of the band. Mr Gilchrist submitted that the sheriff had been entitled to look at the surrounding circumstances, including in particular the evidence that nobody had been disturbed by what the respondent said and did. In response to a question from the Bench Mr Gilchrist did not accept that his client's response to any provocation provided by the band could have led to further reactions elsewhere. That, he said, was mere speculation as was the suggestion that potential disturbance had been nipped in the bud on account of the fact that the respondent had been arrested very quickly. There was, Mr Gilchrist submitted, no evidence of public outrage at what his client had said and done; and in that situation, he submitted, the courts should proceed with caution, and should not move ahead of what is seen as normal by large parts of society.

Decision

[24 ] We readily accept that, in cases where there is no evidence of actual alarm or distress caused to others, something more than evidence about swearing and obscene gestures is likely to be required before the conduct in question can properly be characterised as amounting to a breach of the peace. The cases which were referred to in the course of the hearing before us, along with many others, all make that clear. We venture to think, however, that to concentrate on the word "flagrant", as was done by the sheriffs in the present appeals, may risk narrowing the focus of attention too much.

[25 ] The word "flagrant" was, as we have noted earlier, first used by the Lord Justice-General in the case of Young v. Heatly in 1959. However, he did so in a case where the essence of the charge of breach of the peace was that a teacher had made improper remarks of a sexual nature to pupils in the school. There was, apparently, no evidence of actual alarm or distress as a result of these remarks. In such a case it seems to us that it is not difficult to conclude that remarks, which might at worst be regarded as distasteful if uttered in adult company, possibly in the context of a social gathering, attain a quite different character when directed to children in a school. In the circumstances of that particular case it may be that it was appropriate to use the word "flagrant" to describe the behaviour of the accused. However, we are of the opinion that it is likely to be more helpful to have regard to the whole circumstances surrounding the behaviour complained of in order to determine whether or not it amounts to a breach of the peace. The actual behaviour itself may in some instances justify the use of the word "flagrant"; but, even in cases where that is not so, the whole surrounding circumstances may nonetheless lead clearly to the conclusion that what has occurred can properly be described as amounting to a breach of the peace. In saying this, we are conscious that the word "flagrant" appears in the opinion of Lord Coulsfield in Smith v. Donnelly. However, when that word is seen in the context of the whole opinion, we do not consider that Lord Coulsfield's approach was any different from that which we have just advanced. Accordingly, in our opinion, it is essential that regard should be had to the whole facts and circumstances of each case.

[26 ] In all three cases before us the conduct in question took place in the context of Premier League football matches, one at Ibrox and two at Celtic Park. As was said by Lord Dunpark as long ago as 1982 in the case of Wilson v. Brown, to which we have referred earlier, violence at football matches is unfortunately by no means uncommon. Consequently, in our view, any conduct which can reasonably be regarded as likely to provoke violence must be regarded as serious. A related feature which appears to us to be of some importance is that, in all of the cases before us, the conduct in question took place in the sight of, and in reasonable, albeit not immediate, proximity to, opposing supporters.

[27 ] It is against the foregoing background that, in our opinion, the conduct of the three respondents must be judged. So far as that conduct is concerned, it is, in our opinion, of significance that, in the cases of William Bell and Derek Johnstone, what was said and done was plainly racist in character; and, while it is no doubt the case, as was said by the sheriff, that there can only be racial aggravation once a breach of the peace has been established, that does not mean that racist elements in the conduct are to be ignored when determining whether or not the conduct amounts to a breach of the peace. The case of Russell Hutchison is in a slightly different position since, as was, we think, accepted by the advocate depute, his conduct may not have been racist in the same way as in the two other appeals. However, the words which he used were plainly abusive and offensive and, moreover, he was behaving in what we regard as a highly provocative manner by making "V" signs in the direction of the Rangers supporters. Taking all of the foregoing matters into account, and bearing in mind that all that we are concerned with in the present appeals is what was established by the Crown evidence, we are satisfied that in each of the three cases the sheriffs were wrong to uphold a submission of no case to answer.

[28 ] From what has just been said it is clear that we do not agree with the approach adopted by the sheriffs in these cases, nor do we agree with the submissions advanced before us on behalf of the respondents. In relation to the sheriff who dealt with the cases of Bell and Johnstone we consider that he has given no regard to the wider context in which the conduct complained of took place, and in particular he has not even considered whether that conduct was of a kind which was capable of provoking a wider or more serious disturbance. We agree with the advocate depute's submission that the sheriff was wrong to attach weight to the fact that the conduct was over very quickly. The cases of Wilson v. Brown and Allison v. Higson make it clear that it is to be expected of the police that, in a potentially volatile situation, they will act quickly in order to nip disorderly behaviour in the bud. That means that, in cases like the present ones, the conduct in question will inevitably be over very quickly: but that is not something which can be prayed in aid in order to diminish the character of that conduct. We also agree with the advocate depute's submission that the sheriff's reference to a "cauldron of sound" is irrelevant in the context of charges of breach of the peace. Indeed, even if the sheriff was entitled to use judicial knowledge in order to form a view as to the surrounding noise level at the time - and we have reservations about that - it seems to us that in the context of a noisy crowd the provocative nature of what was said and done takes on even greater significance. Furthermore, if the sheriff's reference to a "cauldron of sound" is to be interpreted as meaning that there is something special about a football match which reduces the seriousness of things said or done which might amount to a breach of the peace elsewhere, we totally disagree with that view. Given the potential for disturbance at football matches, we consider that the opposite is the case.

[29 ] Turning to the case of Russell Hutchison, we consider that what we have just been saying has even more force since in that case the sheriff appears, quite plainly, to have proceeded on the basis that, at football matches, offensive and provocative behaviour should, in effect, be disregarded or even excused on account of the fact that other people are engaged in similar activities. For the reasons which we have given earlier, we regard that approach as entirely mistaken.

[30 ] In relation to the submissions advanced by counsel for the respondents we note that, on several occasions it was submitted that to consider the possible consequences of the conduct in question would be "mere speculation". But, even in the most basic cases of breach of the peace, where there is no evidence of actual distress or alarm, it is well accepted that the question which must be asked is: Would this conduct have been likely to cause distress or alarm to a reasonable person in the vicinity? Such a question might be seen as involving a degree of what might be termed speculation, but in reality what is involved is a balanced judgment as to how a reasonable person would have been likely to react to the conduct having regard to its own nature and to the circumstances and context in which it took place. In cases like the present ones, any consideration of the possible consequences of the conduct complained of involves a similar, balanced, judgment, and not wild speculation.

[31 ] We turn, finally, to the various cases to which we were referred in the course of the hearing. We are of opinion that the views which we have expressed in relation to the present appeals are consistent with what was said in those cases, and we find particular support for our views in the cases of Wilson v. Brown and Allison v. Higson. We also find support in the case of Martin v. Bott. We recognise that, as was submitted by Miss Mitchell, the question of what constitutes a breach of the peace was not examined in that case in the depth that it has been in the present appeals. However, the facts in Martin were very similar to those in two of the present appeals and, for the reasons which we have given, we have no reason to suppose that the Court in Martin came to the wrong conclusion. Finally, there is the unreported case of Owens v. Procurator Fiscal, Hamilton. On one view, the decision in that case is at odds with what we have been saying in this opinion. However, it was obviously a very narrow case where the Court reached its decision "with some hesitation"; and we consider that it can be distinguished on the basis that what was said was not racist in character and on the basis that the massive police presence at the time rendered negligible any risk of the remarks provoking a disturbance.

[32 ] For all of the foregoing reasons, therefore, we shall allow the appeals in all three cases. In the cases of William Bell and Derek Johnstone we shall in each case answer the question posed by the sheriff in the affirmative. In the case of Russell Hutchison the Stated Case is defective in that it does not contain any question for us to answer. By reference to Anderson v. Griffiths 2005 SCCR 41, the advocate depute submitted that it would be open to us to insert an appropriate question in the Stated Case, and that course was not opposed by Mr Gilchrist on behalf of the respondent. Accordingly, we shall ask ourselves a question in that case in the same terms as the question posed in the other two cases, and we shall also answer that question in the affirmative. In view of the foregoing decisions we shall also remit all three cases to the sheriffs concerned to proceed as accords.

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. Hutchison & Ors [2006] ScotHC HCJAC_45 (07 June 2006) URL: http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_45.html Cite as: 2006 SCCR 377, [2006] HCJAC 45, 2006 SLT 657, [2006] ScotHC HCJAC_45, 2006 JC 212

Scottish High Court of Justiciary Decisons

Lord Johnston

[2006] HCJAC 45

Appeal Nos: XJ1616/05, XJ39/06,

XJ40/06

Appellant: Murphy, QC, A.D.; Crown Agent