APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Bonomy Lord Marnoch	[2011] HCJAC 65 Appeal No: XJ835/10 & XJ836/10 OPINION OF LORD MARNOCH in STATED CASES for The Opinion of the High Court of Justiciary IN APPEALS by THOMAS CLARK AND ANDREW GLOVER Appellants; against PROCURATOR FISCAL, DUMBARTON Respondent: _______

Appellant: P McBride, Q.C. et S McColl for Thomas Clark; C Shead for Andrew Glover

Respondent: A Di Rollo; Advocate Depute

1 July 2011

[37] In these two appeals - anxious as they are - the learned sheriff, in his Findings in Fact and a strongly worded Note, has made clear his view that "There was no threat to the public peace other than that resulting from the behaviour of the police" (Finding in Fact 16 in each case). In that connection, the sheriff has also made clear that he simply did not accept large parts of the evidence given by the two accused.

[38] All that said, the difficulty in which I find myself is that the undoubted disturbance which did take place had its root, on the sheriff's findings, in an argument between the complainer, James Carrie, and the accused, Glover, as to whether a remark by the former containing the word "fucking" and the words "sort ... out" was directed to those who had vandalised the complainer's property or, as Glover thought and reported to Clark, to himself. There is no suggestion that Glover did other than think (mistakenly it may be) that the remark was addressed to himself, and there is likewise no suggestion that Clark took Glover's report at other than face value. In that situation, I find it difficult to agree with the sheriff that what he describes in Finding in Fact 11 in each case as a continuing argument "with the police repeatedly telling Carrie not to swear and Carrie and other witnesses pointing out he had done and was doing no such thing" constituted a disturbance entirely of the police's own making, - in the sense, at least, of instructing mens rea for assault on their part. In short, the continuing argument which culminated in the arrest of the two complainers, Carrie and McCallum, was one which, from the police perspective, had resulted from the complainer swearing at Glover and possibly linking that with a threat against him or others. This error or misunderstanding on their part cannot but have coloured their perception of all subsequent developments.

[39] It follows that, although it is clear from the sheriff's findings that the detailed accounts given by the two accused in the witness box were in large measure disbelieved, it is nonetheless impossible to determine from the sheriff's findings exactly where the truth must be taken to lie. The benefit of the resulting doubt must be given to the accused and on that short ground, albeit with some hesitation, I am for answering questions 1 and 6 in each case in the negative and would allow these appeals.