David Wotherspoon v. Procurator Fiscal, Glasgow [2017] HCJAC 69

Appeal from the Sheriff Appeal Court:- On 8 July 2016, at Glasgow Sheriff Court, the appellant was convicted after trial of a charge of breach of the peace by repeatedly standing in his house in full view of the lieges whilst wearing female underclothing and rubbing his nipples and placing the lieges in a state of fear and alarm. On 5 August 2016 he was made the subject of a Community Payback Order with a Supervision Requirement of 18 months. The appellant appealed against his conviction. The contention advanced was that the conduct for which he had been committed did not amount to a breach of the peace as defined in the case of Smith v Donnelly 2002 JC 65. Here the court observed that there were material differences between the sheriff’s findings in fact and the evidence which he referred to in the Note to the court where he sought to explains his reasoning and the basis for his verdict which caused problems for the court in disposing with the appeal. The appeal to the Sheriff Appeal Court was refused on 14 February 2017. Finding in fact 8 stated:- “The appellant’s conduct was genuinely alarming and disturbing to members of the public and would be alarming and disturbing in its context to any reasonable person”. However, the narrative of the evidence as provided by the sheriff did not refer to anyone being alarmed or disturbed. The court observed that had that finding in fact been challenged on the sheriff’s account of the evidence in his Note, there did not appear to be any evidence to support any such alarm or disturbance. It was submitted here on behalf of the appellant that the sheriff and the SAC erred in holding that there was a case to answer, albeit that was not the question which had been posed in the stated case. It was submitted on behalf of the appellant that his conduct was not severe enough to cause alarm and serious disturbance in the community as was required under reference to Smith v. Donnelly. It was submitted that the appellant did not act in a way which could be described as exhibitionist or perverse except in so far as he was observed rubbing his nipples which behaviour might be described as strange or embarrassing but was not of itself serious enough to amount to a breach of the peace. The SAC described the appellant as parading up and down his hallway, however, that was a misrepresentation of the evidence as noted by the sheriff. It was further submitted on behalf of the appellant that where there was an absence of actual alarm then the conduct described had to be flagrant and in the present case that could not be said to by the position. On behalf of the respondent it was submitted that the sheriff and the SAC were correct to hold that there was a case to answer and the correct test had been applied. It was stated in the respondent’s case and argument that whilst it was accepted there was no evidence of alarm the repeated nature of the conduct allowed the lower courts to categorise the conduct as flagrant. At the appeal hearing, however, that position was departed from and it was submitted that the SAC had not applied the correct test when referring to the nature of the conduct where it considered that the conduct could cause alarm in a reasonable person and disturbance, not serious disturbance, in the community. Here the court allowed the appeal. The court stated that whilst the appellant’s conduct may have been exhibitionist, provocative or even perverse in nature, that did not necessarily make the conduct criminal. The court stated that it could not say that a man wearing a bra in his own home amounts to conduct which is either genuinely alarming to any reasonable person or that it threatens serious disturbance to the community and, as such, it did not meet the test laid down in Smith v Donnelly. The conduct, objectively viewed, must involve some public element and requires to be genuinely alarming and disturbing to any reasonable persons and the potential disturbance has to be serious. The court reiterated that where there is no evidence of alarm the conduct must be found to be flagrant in being alarming or seriously disturbing to any reasonable person.