APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Johnston Lord Clarke Lord Marnoch	[2008] HCJAC05 Appeal No: XC469/07 & XC470/07   OPINION OF LORD JOHNSTON   in   CROWN APPEAL   by   COLIN MACDONALD   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

 

Act: Jackson, QC; Mitchell, Gillespie Macandrew

Alt: K Stewart, AD; Crown Agent

 

12 October 2007

This is an appeal by Colin Macdonald against a decision of Lord Bracadale in respect of a preliminary issue as to the competency, or relevancy, or both of the charges of breach of the peace that have been brought against the appellant. Lord Bracadale sets them out in the course of his report to us, and I do not need to repeat them.

The matter was raised before us against the finding of Lord Bracadale, that the issues raised in the two charges should go for determination by a jury at trial. Mr Jackson, appearing for the appellant, argued that in a context in which the remarks which are complained of were made, it was not appropriate to use a neutral phrase for a charge of breach of the peace to be brought, in a sense that, the ladies in question were conducting an interview designed to illicit answers to questions which related entirely to the substance matter of the answers that were given, albeit in possibly an extreme way. It was also conducted in private but we do not consider that as the material point. The material point is the context in which these answers were given. Whether or not, at least one of the two ladies was alarmed by the content of the answers, does not seem to us to be the material point. What seems to us to be much more important is that, and we decide this case purely on that question, that the context of the interview does not lend itself to the definitions of breach of the peace to be found in longstanding cases and rehearsed in two recent cases of Smith and Jones with regard to public concern. We are, therefore, and when I say we, I am referring to myself and Lord Clarke, of the view that these charges are not competently brought and we therefore propose that, in terms of Section 74, the case be remitted back to Lord Bracadale with an instruction that on the present indictment, the charges cannot stand.

In these circumstances, having regard to the majority view of this court, we formally remit this case to Lord Bracadale to proceed as a cause but with an instruction that, on the present indictment, the charges cannot stand.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Johnston Lord Clarke Lord Marnoch	[2008] HCJAC05 Appeal No: XC469/07 & XC470/07   OPINION OF LORD CLARKE   in   CROWN APPEAL   by   COLIN MACDONALD   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

 

Act: Jackson, QC; Mitchell, Gillespie Macandrew

Alt: K Stewart, AD; Crown Agent

 

12 October 2007

 

I agree with everything His Lordship in the Chair has said.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Johnston Lord Clarke Lord Marnoch	[2008] HCJAC05 Appeal No: XC469/07 & XC470/07   OPINION OF LORD MARNOCH   in   CROWN APPEAL   by   COLIN MACDONALD   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

 

Act: Jackson, QC; Mitchell, Gillespie Macandrew

Alt: K Stewart, AD; Crown Agent

 

12 October 2007

In common with Lord Bracadale, I, for my part, would regard the arguments regarding the contextual aspect of this case as being ultimately for the jury to consider. At the same time, I do think that there are real questions arising from the fact that this offence was allegedly committed in private, and it may well be that the case of Young v Heatly 1959 JC 66, to which we referred by the Crown, will one day have to be formally reviewed by a larger court.

There is nothing further I wish to say on the matter.