Issue 47 December 2009 - Current Awareness, Breach of the Peace

 

CRIMINAL LAW Hards v HM Advocate [2009] HCJAC 80 (Five Judges)

The appellant was charged on indictment before the Sher­iff Court in Dundee. He has raised preliminary pleas to the relevancy of the indictment, in particular to two charges of breach of the peace contained within it. These charges are in the following terms:

"(13) on 5 November 2007 at Police Headquarters, Dundee you Mark Harris did conduct 'yourself in a disorderly man­ner and during the course of various conversations, did state to Gary Brown, Inspector; Tayside Police, then engaged in the execution of his duty, that you had engaged a Private Investigator to obtain information about said Inspector and that you knew (a) where said Inspector resided; (b) where his mother resided and (c) details of a mortgage application pertaining to said Inspector and did place said Inspector Gary Brown in a state of fear and alarm and did commit a breach of the peace;

(14) on 5 December 2007 at Police Headquarters, Dundee you Mark Harris did conduct yourself in a disorderly manner and during the course of various telephone conversations with Paul Romanowski, Detective Constable of Tayside Police,, Dundee, state that you knew (a) where said Detective Constable resided; (b) where his mother worked; (c) where his father worked prior to his retirement;(d) personal details pertaining to said Detective Constable’s brother; (e) that said Detective Constable played rugby for a particular team and (f) details of the amount of mortgage pertaining to said Detective Constable’s house and did warn said Detective Constable, who was engaged in the execution of his duty in the course of an enquiry involving you, to stay away from you and to stay away from your bank manager and did thus place said Paul Romanowski in s state of fear and alarm and did commit a breach of peace.”

At a first diet the sheriff repelled the preliminary pleas in rektion to each of these charges. Against that decision the appellant, with leave, appealed. The case raised important questions about charges of breach of the peace, includ­ing questions about the soundness of the decision and reasoning in Young v Heatly, 1959 J.C. 66 as an authority on the point. A bench of five judges was therefore con­stituted to hear the appeal.

The Advocate depute submitted that the sheriff had been correct to dismiss the pleas to the relevancy. The "essence" of breach of the peace was outlined in Smith v Donnelly, 2002 J.C. 65: it was conduct which presented as genuinely alarming and disturbing, in its context, to any reasonable person (per Lord Coulsfield at para. [17]). The Crown did not have to prove actual alarm, although the fact that it was averred was a relevant factor in this case. That objective test had been approved by a full bench in Jones v Carnegie, 2004 J.C. 136 (per the Lord Justice-General (Cullen) at para. [2]) and, as regards art? of the Conven­tion, by the European Court of Human Rights (Lucas v United Kingdom (2003) 37 EHRR CD 86). Part of the pur­pose of the law was to protect individuals' peace of mind: it was sufficient that the behaviour might objectively cause "personal fear" to the person at whom it was aimed (cf. Ferguson v Carnochan (1889) 16 R (J) 93, per the Lord Jus­tice-Clerk (Macdonald) at p.94). Proof of actual alarm or disturbance to the lieges was not required (Raffaelli v Heatly, 1949 J.C. 101; Young v Heatly, 1959 J.C. 66; Jones v Carnegie). Nor should it be decisive that the conduct was discover­able, or that it took place in a public place rather than pri­vate premises. In any event, the authorities on discoverability often involved the accused acting alone (Bryce v Normand, 1997 S.L.T. 1351; cf. Thompson v MacPhail, 1989 S.C.C.R 266); in the present case, the conduct was openly directed at individuals (cf. Young v Heatly, Paterson v HM Advocate).

On behalf of the appellant, it was argued that there were areas into which the criminal law did not intrude and where further development was a matter for Parliament (cf Webster v Dominick 2005,1 J.C. 65, per the Lord Justice-Clerk (Gill) at para. [59]). There had to be limits to the crime of breach c)f the peace: a clear link between conduct com­mitted in private and its possible discovery was required before it could be considered criminal (Bonvick v Urquhart, 2003 S.C.C.R 243, per Lord Coulsfield at para [3], follow­ing Smith v Donnelly, cf Webster v Dominick, per Lord Gill at para.[56]). The conduct had to be linked to a breach of the ' 'public peace'': for that reason Young v Heatly might repre­sent an improper extension of the law. Although a fixed line could not be drawn between public and private con­duct, the element of time was crucial: too broad a tempo­ral window between the conduct and its potential discovery rendered the prospect of a breach of the public peace too remote. Contrary to the submissions of the Advocate de­pute, the decision in Jones v Carnegie did not cast doubt on the operation of the conjunctive test the purpose of that appeal was to consider the test, a full bench being consti­tuted for that reason (cf para.[l], per the Lord Justice-Gen­eral (Cullen)); the test was specifically referred to in the submissions of counsel; and the decision confirmed that, where conduct took place in private, there had to be a re­alistic risk that it would be discovered (per the Lord Justice-General (Cullen) at para. [12]). It was now established that the correct approach was to apply that test (Paterson v HM Advocate, per the Lord Justice-General (Hamilton at para. [23]; cf. MacDonald v HM Advocate, 2008 S.C.C.R 181).

Held: appeal allowed.

(1) "[10]In Chapter X\/I of Vol. I of his Commentaries Hume deals with the crime of mobbing. The following chapter opens as follows (page 439):

"In familiar discourse, and sometimes, but rather improperly, in the proceedings of the inferior courts, which have the ordinary cogni­sance of such disturbances, the name of riot is also given to a mere brawl, or occasional quarrel and strife, among persons who were not assembled with any mischievous purpose. If, however, a contest of this sort happens in such a place, or is carried to such a length, as to dis­turb and alarm the neighbourhood, this seems to be cognisable at in­stance of the public prosecutor, as a breach of the public peace; to the effect at host of inflicting a fine and imprisonment, and exacting cau­tion from the offenders, for their good behaviour for the future. So, at that time breach of the peace was treated as in effect a lesser form of mobbing and rioting, the essence of it being conduct such as to disturb and alarm the neighbourhood."

(2) When in Smith v Donnelly the High Court came to re­view the law of breach of the peace with a view to de­ciding whether it was of sufficient certainty to meet art.7 of the ECHR, it took as its starting point what was said by Lord Justice-Clerk Macdonald in Ferguson v Carnochan (1889), variously reported but found in the official reports at 16R (|) 93, where the offender in the early hours of a Sunday morning was overheard by constables from the street making a noise and disturbance and using loud lan­guage in his licensed premises. This persisted for some time and was continuing when an hour later the consta­bles, from some 30 yards off, heard him cursing and swearing. The Lord Justice-Clerk, finding that on the facts disclosed a breach of the peace could be inferred, said: "Breach of the peace consists in such acts as will reasonably produce alarm in the minds of the lieges, not necessarily alarm in the sense of personal fear, but alarm lest if what is going on is allowed to con­tinue it will lead to the breaking up of the social peace. The words 'to the alarm of the lines' in a charge of breach of the peace mean that what is alleged was likely to alarm ordinary 'people, and if continued might cause serious disturbance to the community."

(3) It is quite dear from these observations ("breaking up of the social peace"; "cause serious disturbance to the community", "alarm and annoyance of the public'';' 'some mischief may result to the public peace") that affecting the community was regarded as an essential element in the con­stitution of this crime and it was unsurprising that when Lord Coulsfield, delivering the opinion of the court in Smith v Donnelly, came to draw on Lord Justice-Clerk Macdonald's observations, he said at para. [17]: "[I]t is, in our view, clear that what is required to constitute the crime is conduct severe enough alarm to ordinary people and threaten serious disturbance to the community.”

(4) When in Lucas v United Kingdom the European Court of Human Rights was considering the relevant domestic law it quoted, at p.87, two of the three passages mentioned from para. [17] in Smith v Donnelly and paraphrased the penultimate sentence by stating that the High Court "con­sidered ... that a reasonable apprehension of disturbance to the public peace is required". In Lucas, which involved a demonstration on a public road, there was a clear pub­lic element. The argument under art.5 appears to have concentrated rather on that aspect of the definition which involved the conduct being presented "as genuinely alarming and disturbing, in its context, to any reasonable person" (p.89); but it is dear from the discussion of art.10 and 11 (p.90) that public safety and/or the prevention of disorder were part of the context.

(5) If it is necessary to constitute breach of the peace that the conduct, in some sense, must "threaten serious disturbance to the community", it is difficult to see how a statement made in private by one person to another can, without more, constitute that offence.

(6) In Young v Heatly a deputy headmaster of a technical school was charged with four separate offences of breach of the peace. Each involved a different youth, all four being pupils at the school. The youths were seen separately in the teacher's room. Sexually improper remarks were made to each of them. The teacher was convicted in the Burgh Court of all four charges (with certain restrictions). He appealed un­successfully to the High Court The leading opinion was delivered by Lord Justice-General Clyde. On the material part of the appeal he said: "Breach of the peace, however, is an offence the limits of which have never been sharply defined.  It is so largely in each case a question of circumstances and of degree.  It is well settled that it can take place in a private house.”

(7) In that case it was said by the Lord Justice-General that it was not essential for the constitution of this crime that witnesses should be produced who speak of being alarmed or annoyed. He also said that at the same time 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.

(8) However a number of observations had to be made on these views. First, although in 1959 the limits of breach of the peace may not have been "sharply defined", the subsequent in­corporation of the ECHR has required that' 'any law cre­ating a criminal offence must meet a certain standard of clarity and comprehensibility'' (Smith v Donnelly at para. [8]). Secondly, while a breach of the peace can be committed by conduct in a private house, it was clear from a consid­eration of the authorities that the concern in those cases was the noise thereby created in the public street. Thirdly it is reasonable apprehension of mischief to the public peace which is of the essence of the crime.

(9) It followed that the approach in Young v Heatly could not be regarded as sound. Essentially, it failed properly to take into account the true nature of breach of the peace as a crime which has at least a public element. Authorities before it and au­thorities since have emphasised that element. The rea­soning in Young v Heatly ignores it. That decision was therefore overruled as being wrong in law.

(10) In this case it was averred in charge (13) that the statements com­plained of were made to a police inspector at a police sta­tion and that the making of them placed him in a state of fear and alarm. In charge (14) it is averred that the state­ments were made to a detective constable in telephone conversations made with that officer when at a police sta­tion. While other officers may have been present when the statements were made to the inspector and other of­ficers may have overheard, at least in part, the telephone conversations, it was not suggested that any of the officers involved might, having heard the statements, have been provoked to react by taking the law into his own hands or that otherwise there could have been any apprehension of a disturbance to the public peace. The contention ad­vanced was that, provided the words spoken were, objec­tively speaking, disturbing or alarming in their context, that was sufficient to constitute breach of the peace. Although the phrase "in a disorderly manner" was, as a matter of style, averred in each charge, it wasn't suggested that the manner in which the words were uttered was in fact dis­orderly.

(11) On that hypothesis the situation is on all fours with that in Young v Heatly, other than as to the content of the utterances and that in one the words were spoken to police officers and the other to young males, and for the reasons given in disapproving Young v Heatly the contention advanced was, in the view of the High Court, unsound.

(12) In particular, there is no recognition of the need that the offending conduct should, in some sense at least, cause or threaten disturbance to the public peace. Tested logi­cally, the argument would entail that any utterance made privately to another individual which was, objectively speaking, disturbing or alarming would be sufficient to constitute the crime. This was unsound as the Crown's contention would, if sound, mean that the making of a statement privately, say by a journalist to a politician, that he intended to publish true but embarrassing details about that politician's past conduct would, assuming the content to be such that his exposure would cause genuine alarm to the politician, constitute the criminal offence of a breach of the peace. The ECHR implications of such a result would be serious.

(13) It was unnecessary for the purposes of this opinion to seek to give definitive guid­ance as to what public element would be sufficient Dis­turbance or potential disturbance of even a small group of individuals in a private house may suffice. The conduct need not be directly observable by the third parties but, if in private, there must be a realistic risk of it being discov­ered.