APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Bracadale Sheriff Principal Stephen	[2015] HCJAC 2 HCA/2014/004604/XJ   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   APPEAL   by   STATED CASE   EDWARD MONTGOMERY Appellant;   against   PROCURATOR FISCAL, KILMARNOCK Respondent:   _____________

Applicant: I Paterson (Solicitor Advocate); Paterson Bell (for Allan Kerr, Kilmarnock)

Respondent: Scullion QC AD; the Crown Agent

 

17 December 2014

Introduction
[1]        On 7 August 2014, after a trial lasting some 5 days at Kilmarnock Sheriff Court, the appellant was found guilty of 3 charges of breach of the peace.  The first was that, at Saltcoats in February 2010, he had, on various occasions, stared repeatedly at two 14 year old girls and placed them in a state of fear and alarm.  The second was that, at Dreghorn in April 2012, he had attempted to entice an 11 year old boy into his van.  The third was that, at Ardrossan in May 2013, he had repeatedly stared at three children, two boys aged 9 and 11 and a girl aged 12, and placed them in a state of fear and alarm.  The sheriff imposed a Community Payback Order, with 240 hours of unpaid work as a condition.  The appeal raises issues concerning the scope of breach of the peace and the application of mutual corroboration.

 

Evidence
[2]        The evidence was in relatively narrow compass.  On the first charge, the complainer was going home from school at about 3.45pm.  She was passing a row of shops when she noticed the appellant staring at her continuously from a white van.  He had a long beard.  He was scruffy and “creepy” in appearance.  On going back to the shops some fifteen minutes later, she had the same experience.  A day or so later, she was again returning from school, this time with a friend.  Both girls became aware of the appellant staring at them continuously whilst they walked some 30 metres towards and past the van.  The girls were so alarmed and disturbed by this that they went into a nearby shop and sought assistance.  A member of staff left the shop and took the registration number of the van, of which the appellant was the registered keeper.  When spoken to by the police, the appellant admitted being parked in the relevant place, but said that this was because he had been waiting for his friend to come out of the bookies.

[3]        On the second charge, the complainer had seen a white van as he was walking from his grandmother’s house.  The van braked sharply and turned into a car park before approaching the complainer from behind and stopping.  The driver was scruffy with a long beard.  The driver spoke to him saying, “… do you want to come into my van to get some sweets?”  The complainer was frightened and ran to a friend’s house.  His friend’s mother, and the complainer, ran to a point at which they could see the van being driven away at speed.  At the same time, the friend’s grandmother was in the vicinity and was able to identify the appellant as the driver of the van as it passed her.  When the police examined the appellant’s van, it was found to have a red panelled interior with a mattress and some bedding.  It was a different van from that in the first charge.  The appellant admitted being in the vicinity of the locus at the material time, attempting to visit a friend, whose address he did not know.

[4]        The third charge involved three children playing in a beach area.  The beach was bordered by a cul‒de‒sac along which a white van was driven.  It was turned at the end of the road and approached the children.  The driver, namely the appellant, stared continuously at them, causing them to run off.  He would have lost sight of the children momentarily, as they were behind a wall.  On seeing them again, he speeded up until he reached their position, at which point he slowed to a crawl and started staring at them continuously again.  The children were panic stricken and ran home in an hysterical state.

[5]        A no case to answer submission was made on the basis of insufficient evidence of identification on charge 2, even with the application of mutual corroboration, because that alleged offence was not similar in time, character and circumstances with those on charges 1 and 3.  It was also submitted that the conduct in respect of charges 1 and 3 did not constitute a breach of the peace, because it was not severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community.

[6]        The sheriff repelled the submission.  On charge 2 he held that the evidence from the complainer and his friends’ relatives, speaking about the man with the long beard in the white van, was sufficient when combined with the grandmother’s identification of the driver.  He considered that the conduct in respect of charge 2 was sufficiently similar to that in the other two charges as to merit the application of mutual corroboration.  He concluded that the evidence in respect of charges 1 and 3 described conduct which was genuinely alarming and disturbing in its context and would be so regarded by any reasonable person. 

 

Submissions
 Appellant
 [7]       The appellant maintained that, as had been submitted to the sheriff, the conduct was not severe enough to be classified as “genuinely alarming in its context, to any reasonable person”(Smith v Donnelly 2002 JC 65 at para [17]).  The fact that alarm was caused was not determinative (Jones v Carnegie 2004 JC 136 at para [13]).  The conduct required to be both severe enough to cause alarm to ordinary people and thereafter be capable of provoking serious disturbance to the community (Smith v Donnelly (supra); Paterson v HM Advocate 2008 JC 327 at para [22]).  The matter required to be tested by reference to the potential reaction of a notional reasonable third party (Angus v Nisbet 2011 JC 69 at para [15]).  It was accepted that the sheriff had applied the correct test but said that he had erred in holding that the conduct could have provoked a serious disturbance.

[8]        On the basis that the appeal against conviction on charges 1 and 3 were successful, there was insufficient evidence to corroborate either the identification of the appellant or the conduct in charge 2.  That conduct was not sufficiently similar in character to that in charges 1 and 3.  In addition, it did not have a “significant sexual aspect” in terms of section 92 of the Sexual Offences Act 2003 (sch 3, para 60).  The appellant was under the impression that the certification under the Act had related only to this charge, although the minutes and copy certificate state that it related to all 3 charges.

 

Respondent
[9]        The advocate depute maintained that evidence that a 63 year old persistently stared at one young girl and then, the next day, at two girls over a distance of 30 metres and to the point of causing them distress, amounted to a breach of the peace.  Such conduct would be alarming if it related to an adult and was more so in the case of a child.  The reaction of the shop assistant demonstrated this.  The behaviour was in public and likely to provoke a serious disturbance.  Similarly, in relation to charge 3, the appellant had driven the length of the street, turned and followed the children, even after they had initially run off.  Again the behaviour would be sufficient to frighten an adult.  The test was that in Smith v Donnelly (supra).  The dictum in Raffaelli v Heatly 1949 JC 101 (at 104) concerning conduct “which might reasonably be expected to lead to the lieges being alarmed or upset and tempted to make reprisals at their own hand”, was instructive.  The circumstances there contrasted with the ambiguous behaviour in Angus v Nisbet (supra). 

[10]      There was sufficient evidence on charge 2 even without the application of mutual corroboration.  There was the complainer’s distress, coupled with the finding of bedding in the van.  The appellant’s interest in children, as displayed in relation to charges 1 and 3, was also a factor.  The sheriff was entitled to apply the principles of mutual corroboration (MR v HM Advocate 2013 JC 212 at paras [20] and [21]).  Evidence of identification did not have to come from a complainer (Lindsay v HM Advocate 1993 SCCR 868).  The evidence on all three charges involved seeking out young children in a van and causing them fright and upset.  It was conduct which was persisted in and capable of providing corroboration on each charge (B v HM Advocate 2009 JC 88, at paras [6] and [7]).

[11]      The sheriff was entitled to conclude that there was a significant sexual aspect to charge 2, given what was said and the presence of the bedding in the van.  No alternative explanation for what had been said was advanced.

 

Decision
[12]      The definition of what constitutes a breach of the peace has long since been settled, even if it appears to continue to pose difficulties in its application to particular circumstances.  It is conduct which is “severe enough to cause alarm to ordinary people and threaten serious disturbance to the community” (Smith v Donnelly 2002 JC 65, Lord Coulsfield, delivering the Opinion of the Court, at para [17]).  “What is required … is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person” (ibid).  Whether conduct is capable of fitting into the definition will be a matter of fact and degree primarily for the judge at first instance (eg Russell v Thomson 2011 SCCR 77) or the jury (Gifford v HM Advocate 2011 SCCR 751) to resolve, having heard all the circumstances as described by the witnesses.

[13]      It is not enough that the conduct complained of did alarm and disturb someone, nor is it determinative that it did not (Jones v Carnegie 2004 JC 136, LJG (Cullen) delivering the opinion of the Court at para [13]).  The test is an objective one, in the sense that the court must address the issue from the standpoint of the reasonable person observing or experiencing the conduct.  It is clear that the conduct must involve some public element (Harris v HM Advocate 2010 JC 245, LJG (Hamilton) delivering the Opinion of the Court at para [22]). 

[14]      In the present offences, the conduct all took place in public, with the appellant’s behaviour taking place on the street.  It did in fact cause alarm to the children involved in all three episodes.  In each one, the children were prompted to flee and bring their fears immediately to the attention of an adult.  That is not determinative, but it is an important factor to take into account when the court comes to determine objectively whether their reactions were those of reasonable persons and whether the conduct thereby threatened serious disturbance to the community.  In that regard, the court does not necessarily have to place itself into the shoes of a disinterested, albeit reasonable rather than stoic, bystander.  The potential for disturbance may be gauged as a consequences of the anticipated reaction of reasonable persons (including children and/or adults to whom they might report) involved in the activity itself.

[15]      It is important to guard against criminalising, or indeed criticising, the innocent actings of those whose unkempt or hirsute appearance in public may in itself cause fright to young children, or even adults.  Nevertheless, the conduct in this case was, according to their evidence, genuinely alarming to all the children involved and to the adults who heard their de recenti cries for assistance.  It was not simply that the appellant was said to have stared at the children, but that he did so repeatedly and over prolonged periods; factors which children and adults might reasonably regard as intimidating, if not threatening.  In such circumstances, the sheriff’s decision, to repel this part of the no case to answer submission, was correct.

[16]      As was recently said in MR v HM Advocate 2013 JC 212 (LJC (Carloway), delivering the Opinion of the Court, at para [16]), it is not necessary to explore the origins of the law relating to the application of the principle of mutual corroboration standing the detailed analysis in B v HM Advocate 2009 JC 88.  What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour libelled (ibid para [20], following NKS v HM Advocate 2006 SCCR 70) such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused. 

[17]      Such similarities were undoubtedly present here.  In each case the conduct occurred in the public street with the appellant driving a van.  Each episode involved children, with the appellant either following or staring at them or both.  It is true that the attempt to lure the complainer into his van is a point of difference.  It is, however, only that.  The sheriff was again correct in repelling the submission.  Question 1 in the stated case falls to be answered in the affirmative, as does question 2 which was not argued.

[18]      Whether conduct has a significant sexual aspect, such as warrants a determination under paragraph 60 of Schedule 3 to the Sexual Offences Act 2003, is a matter of fact primarily for the application of the judgment of the court of first instance having heard all the circumstances, but bearing in mind that the purpose of the notification requirements is protection of the public against a perceived danger (Hay v HM Advocate 2012 SCCR 281, LJC (Gill) at para [52]).  In the absence of an alternative explanation for enticing an 11 year old boy into a van containing a mattress and bedding on the promise of sweets, the sheriff was almost bound to conclude that a significant sexual aspect was present.