BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
Scottish High Court of Justiciary Decisons |
||
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Clark & Anor v. Procurator Fiscal [2011] ScotHC HCJAC_65 (01 July 2011) URL: http://www.bailii.org/scot/cases/ScotHC/2011/2011HCJAC65.html Cite as: 2011 SCL 809, 2011 SCCR 457, 2011 GWD 25-559, [2011] HCJAC 65, [2011] ScotHC HCJAC_65 |
[New search] [Help]
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
|
Lord Osborne Lord Bonomy Lord Marnoch
|
[2011] HCJAC 65Appeal No: XJ835/10 & XJ836/10
OPINION OF LORD MARNOCH
in
STATED CASES
for
The Opinion of the High Court of Justiciary
IN APPEALS
by
THOMAS CLARK AND ANDREW GLOVER Appellants;
against
PROCURATOR FISCAL, DUMBARTON Respondent:
_______
|
Appellant: P McBride, Q.C. et S McColl for Thomas Clark; C Shead for Andrew Glover
Respondent: A Di Rollo; Advocate Depute
1 July 2011
[37] In these two appeals - anxious as they
are - the learned sheriff, in his Findings in Fact and a strongly worded
Note, has made clear his view that "There was no threat to the public peace
other than that resulting from the behaviour of the police" (Finding in Fact 16
in each case). In that connection, the sheriff has also made clear that he
simply did not accept large parts of the evidence given by the two accused.
[38] All that said, the difficulty in which I
find myself is that the undoubted disturbance which did take place had its root,
on the sheriff's findings, in an argument between the complainer,
James Carrie, and the accused, Glover, as to whether a remark by the
former containing the word "fucking" and the words "sort ... out" was
directed to those who had vandalised the complainer's property or, as Glover
thought and reported to Clark, to himself. There is no suggestion that Glover
did other than think (mistakenly it may be) that the remark was addressed to
himself, and there is likewise no suggestion that Clark took Glover's report at other than
face value. In that situation, I find it difficult to agree with the sheriff
that what he describes in Finding in Fact 11 in each case as a continuing
argument "with the police repeatedly telling Carrie not to swear and Carrie and
other witnesses pointing out he had done and was doing no such thing"
constituted a disturbance entirely of the police's own making, - in the
sense, at least, of instructing mens rea for assault on their part. In
short, the continuing argument which culminated in the arrest of the two
complainers, Carrie and McCallum, was one which, from the police perspective,
had resulted from the complainer swearing at Glover and possibly linking that
with a threat against him or others. This error or misunderstanding on their
part cannot but have coloured their perception of all subsequent developments.
[39] It follows that, although it is clear from
the sheriff's findings that the detailed accounts given by the two accused in
the witness box were in large measure disbelieved, it is nonetheless impossible
to determine from the sheriff's findings exactly where the truth must be taken
to lie. The benefit of the resulting doubt must be given to the accused and on
that short ground, albeit with some hesitation, I am for answering
questions 1 and 6 in each case in the negative and would allow these
appeals.