W.M. v. Her Majesty's Advocate [2010] HCJAC 75

Criminal Note of Appeal Against Conviction:- On 24 March 2009 at Glasgow High Court the appellant was convicted of various offences involving the serious sexual abuse of his two sons. He was also convicted of two charges of breach of the peace which involved the issuing of threats to his sons against reporting the allegations of abuse. It was in relation to the breach of the peace charges that the appellant appealed against conviction here. It was submitted on behalf of the appellant in relation to the first ground of appeal that as a matter of sufficiency the evidence presented did not satisfy the second part of the conjunctive test for breach of the peace, there having been no public element to the appellant's behaviour, such as was likely to threaten serious disturbance in the community as the conduct took place exclusively in private and the averments of "disorderly conduct" were devoid of any real content. The second ground of appeal was that the trial judge had not given directions in accordance with the conjunctive test and he had not applied his mind to the correct test and had given directions on the need for a "realistic risk" of private behaviour being discovered, these had been incomplete and could mislead jurors. It was submitted on behalf of the Crown that there had been sufficient evidence to satisfy the conjunctive test and while the conduct had taken place in private, there had been a realistic prospect of its being discovered, the emphasis had to be placed on the potential for, as opposed to the actual discovery of the conduct. It was further submitted that if there was insufficient evidence to satisfy the conjunctive test for breach of the peace, the evidence presented in the present case could have resulted in a conviction for another crime, namely, the issuing of threats. On behalf of the Crown it was submitted that section 118(1)(b) of the Criminal Procedure (Scotland) Act 1995 and paragraph 9(2) of Schedule 3 of the 1995 Act, permitted the verdicts in relation to the charges of breach of the peace to be set aside and amended verdicts of guilty of threats to be substituted, even where the Crown had not sought a conviction for such offences at the trial and there was little difference in the actus reus or mens rea of threats and breach of the peace. Here the court considered whether the conduct of the appellant was such that there was a realistic risk of the conduct being discovered and therefore evidence before the jury which could satisfy the conjunctive test. The court also considered the issue of alternative verdicts.