WOTHERSPOON, APPEAL FROM THE SHERIFF APPEAL COURT BY v PROCURATOR FISCAL, GLASGOW [2017] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> WOTHERSPOON, APPEAL FROM THE SHERIFF APPEAL COURT BY v PROCURATOR FISCAL, GLASGOW [2017] ScotHC HCJAC_69 (23 August 2017)) URL: http://www.bailii.org/scot/cases/ScotHC/2017/[2017]_HCJAC_69.html Cite as: 2017 SCL 955, 2018 JC 79, [2017] ScotHC HCJAC_69, 2017 SCCR 505, 2017 GWD 30-476, [2017] HCJAC 69

[1] On 8 July 2016, at Glasgow Sheriff Court, the appellant was convicted of a charge

“on various occasions between 01 January 2015 and 08 August 2015, ... at ...

Rutherglen you … did conduct yourself in a disorderly manner, stand in your house

in full view of the lieges whilst wearing female underclothing, rub your nipples,

place the lieges in a state of fear and alarm and commit a breach of the peace.”

On 5 August 2016, the court imposed a Community Payback Order with a Supervision

[2] The issue raised in the appeal to this court is, ultimately, whether the appellant’s

behaviour amounted to a breach of the peace, in terms of the test in Smith v Donnelly 2002 JC

[3] The application for a stated case specified the matter which the appellant wished to

“2 ... a. The sheriff erred in law in repelling the Defence no case to answer

submission and misdirected himself on the requirements for a conviction of breach

The stated case does not pose a question relating to that matter, at least in so far as directed

to the no case to answer submission. The questions are whether: (1) the sheriff was entitled

to hold that the appellant’s conduct constituted a breach of the peace; and (2) on the facts

stated, the sheriff was entitled to convict. Although these questions may raise “virtually the

same” issues as one directed to a no case to answer submission (see Wingate v McGlennan

1991 SCCR 133 (LJC (Ross) at 136(2)), that will not be the case where, as here, there are

material differences in the sheriff’s findings in fact and his narrative of the evidence. In this

case, there was no attempt at challenging any of the findings in fact by the appellant by

adjustment. That being so, following the form of the questions, there ought to be little or no

recourse to that narrative. The case, ie the manner in which the questions should be

answered, ought to be capable of resolution simply by reference to the facts found and

without recourse to any other material. However, as will be seen, material differences

between the findings in fact, the sheriff’s narration of the evidence, which he appears to

have accepted, and the facts which he alludes to in the Note which explains his reasoning,

[4] The difficulties which arise from the failure to pose the appropriate question are

compounded by the manner in which the case was dealt with at second sift. The sift judges

determined that leave is “only sought on ground one”. Without seeking to be over pedantic,

the problem with this is that in stated case procedure there are no “grounds”. It is the

questions posed that define the scope of the appeal and not the content of the application for

a stated case (Wallace v Thomson 2009 SCCR 421, Lord Carloway, delivering the Opinion of

the Court, at para [13]). Once the stated case is finalised, the application normally has no

relevance in the absence of a complaint about the manner in which it has been stated. At the

sift stage, if leave is to be limited to particular aspects of the case, any restriction requires to

be defined under reference to the questions posed. In this regard, the reference by the

Sheriff Appeal Court (infra at para [3]) to the “note of appeal” is erroneous, if

understandable standing the sift decision. There is no such note. The SAC appear to have

attempted to ride two different horses by: (i) looking at the evidence, which is usually only

legitimate where there is a question posed about a no case to answer submission or a

challenge to a specific finding in fact; and (ii) answering the questions actually posed, which

[5] The appeal was refused by the SAC on 14 February 2017 (SAC/2016/000678/AP).

[6] The locus was a ground floor flat occupied by the appellant in a residential area. In

front of the building, directly in front of the appellant’s flat, there were access paths and

grassed areas which were open to the public and where children played. On four occasions

between 1 January and 8 August 2015, residents observed the appellant, either at his front

door or the windows of his flat, bare chested but wearing a bra. The appellant was within

[7] The sheriff provided a narrative of the testimony of the witnesses without adverse

comment. IB (aged 48) was a male resident in one of the upper flats. On a Saturday

morning in August 2015, he was passing the appellant’s flat. The front door was three

quarters open and the appellant was in the hall. He was wearing trousers, but was bare

chested and wearing a white bra. The appellant walked up and down the hall, but made no

attempt to close the door. IB did not stop and continued home. He did not feel threatened,

but was “uneasy” and “concerned”, especially as children were resident in the building and

played in the area near the appellant’s door. He discussed the matter both with his partner

and his neighbour and reported it to the local council on the Monday.

[8] CF (aged 22), was a female resident in one of the flats. She had observed the

appellant on two occasions. The first occurred one evening in the Spring, 2015. From the

access corridor to her flat, she saw the appellant for a split second at his living room

window, bare chested and wearing a bra. The second was on a Summer evening in 2015, as

she passed the appellant’s living room window. The curtains were open and a light was on.

A figure stood in the middle of the room, bare chested and wearing a bra. CF found the

[9] AC (aged 19) was a female resident in the same block. One evening in the Summer,

2015, she had walked past the appellant’s flat. A noise of plates/crockery clattering caused

her to look at the appellant’s windows. She could see through the windows (plural) and

saw the appellant at a door close to “the window” peeking out. The room light was on. He

was bare chested and wearing a bra. She was “confused” and found the conduct “weird”.

[10] On 24 August 2015, the appellant was detained. He said “If it’s what I think it’s

about, it’s because I’ve been wandering about in a bra.” He did not give evidence.

[11] The findings in relation to IB differ from his evidence in that there is no reference to

the door being only three-quarters open. They refer to IB feeling “uncomfortable”.

[12] The findings in relation to CF differ from her evidence in that the reference to a split

second is omitted from the first incident. In the second, a light becomes lights and it is said

that “attention was drawn to the room”. The positioning of the figure changes from being in

the middle of the room to “in the window” and this time it was rubbing its nipples. The

conduct was not sufficiently upsetting to prompt a report to the police.

[13] The findings in relation to AC differ from her evidence in that there is no reference to

crockery. The hall and kitchen lights were on. The appellant was at the kitchen door

looking (not peeking) out. She felt “unsettled” but not “confused” and the conduct was not

[14] Although the narrative of the evidence does not refer to anyone being alarmed or

“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

Had that finding been challenged, it would have been difficult to say where the evidence

[15] In his Note, the sheriff describes the appellant’s conduct as “provocative”, “designed

to draw the attention of members of the public” and “exhibitionist”. He made no findings to

that effect, nor in relation to his view that the conduct was “perverse”. He stated that the

evidence from the witnesses was that there was concern or alarm, but the latter does not

coincide with his narrative of the evidence. He states that, if a child had reported the

conduct to a parent, conflict may have arisen. That is not a finding either.

[16] The sheriff considered what he perceived to be the changing “social and sexual

standards” in society, but was unable to view the appellant’s actions as “anything other than

deliberately provocative” and conduct which was “genuinely alarming and disturbing to a

reasonable member of the public”. On that basis, which does not set out the full test, he

concluded that the test set down in Smith v Donnelly (supra), had been met.

[17] The SAC at first correctly observed that the test to be applied was that set out in

Smith v Donnelly (supra at paras [17] to [18]). It required proof of conduct which was severe

enough to cause alarm to ordinary people and to threaten serious disturbance to the

community. Whether conduct was capable of fitting that definition was a matter of fact and

degree and primarily one for the court of first instance (Montgomery v Harvie, 2015 JC 223,

citing Russell v Thomson, 2011 JC 164). If there was no evidence of actual alarm, the conduct

had to be flagrant. “Flagrant” conduct was that which was severe enough to cause alarm to

ordinary people and to threaten serious disturbance to the community. The reactions of the

witnesses, whilst not determinative (Montgomery v Harvie (supra)), were important factors.

[18] The SAC accepted that it was important to guard against criminalising innocent,

albeit unusual, behaviour which took place within a person’s own home. The SAC stated

“… Parading (sic) at an open door and in front of the living room window bare

chested apart from a visible pink (sic) brassiere and on one of those occasions

rubbing his nipples, places this conduct beyond simply relaxing at home and beyond

that which was merely annoying or uncomfortable. He conducted himself in this

fashion repeatedly, a factor which adults might reasonably regard as exhibitionist

and perverse. Where that conduct is considered objectively, we are of opinion that it

could readily cause alarm in a reasonable person and disturbance in the community”

The SAC entertained certain submissions based upon Articles 5, 8 and 10 of the European

Convention. However, no issue arises in the stated case about whether the law on breach of

the peace is compliant with Convention jurisprudence. In any event, it is so compliant

(Gough v United Kingdom 2015 SCCR 1 at para 155, following Lucas v United Kingdom

[19] The appellant submitted that the sheriff and the SAC had erred in determining that

there was a case to answer. Thus the issue focused ostensibly on a question not posed.

Nevertheless, the argument was not based on sufficiency but on a contention that the

appellant’s conduct as described by the witnesses was not severe enough to cause alarm and

serious disturbance to the community. The appellant had not acted in a way which was

exhibitionist or perverse. The only incident which could be described as such was when the

appellant had rubbed his nipples. Whilst this behaviour could be described as strange or

embarrassing, it was not so alarming or disturbing that it could amount to a breach of the

peace. The SAC had mischaracterised the actions of the appellant in walking up and down

his hallway as “parading”. The sheriff had not described it as such. The SAC had erred in

holding that the reaction of the witnesses provided positive assistance in determining

whether or not the test in Smith v Donnelly (supra) had been met. As there was no evidence

of actual alarm (cf Montgomery v Harvie (supra)) the conduct required to be “flagrant”. The

SAC had not addressed that issue. The appellant’s conduct was not genuinely alarming and

disturbing in its context to a reasonable person. Older cases such as Stewart v Lockhart 1990

[20] The respondent’s Case and Argument maintained that neither the sheriff nor the

SAC had erred in concluding that there was a case to answer. The lower courts had applied

the correct test. It was accepted that there had been no evidence of alarm, but the nature of

the conduct and its repetition on four occasions had allowed it to be properly categorised as

flagrant. However, at the appeal hearing, the terms of the Case and Argument were

[21] It was accepted that the SAC had not applied the test in Smith v Donnelly (supra)

when referring (supra) only to conduct which might be regarded as exhibitionist and

perverse and which could, rather than would, cause alarm in a reasonable person and

disturbance, but not serious disturbance, in the community. In the absence of finding in

fact 8, the evidence would not justify a conviction given that the witnesses had not been

alarmed and the conduct required to be flagrant. Neither the sheriff nor the SAC described

[22] The test of whether conduct constitutes a breach of the peace remains that in Smith v

Donnelly 2002 JC 65 (Lord Coulsfield, delivering the Opinion of the Court at para [17],

following Ferguson v Carnochan (1889) 2 White 278). It is whether it is:

“severe enough to cause alarm to ordinary people and threaten serious disturbance to

the community ... What is required ... is conduct which does present as genuinely

alarming and disturbing, in its context, to any reasonable person ...” (ibid at para [18])

[23] That test was framed so as to enable the crime of breach of the peace to be

formulated with sufficient certainty to meet the requirements of the European Convention

on Human Rights. Consequently it is very important that the precise language is followed

when applying the test. The conduct requires to be genuinely alarming and disturbing to

any, that is to say not just to one, some or even many, reasonable persons, and the potential

disturbance has to be classified as serious. If there is no evidence of alarm, the conduct must

be found to be flagrant; in the sense of being alarming or seriously disturbing to any

reasonable person. The test is an objective one and must involve some public element

(Montgomery v Harvie 2015 JC 223, LJC (Carloway), delivering the Opinion of the Court at

[24] The court has already set out its views on the deficiencies of both the stated case and

the procedure which followed thereon. In the context of summary appeals, it is critical that

the drafting of a stated case and the subsequent procedure thereon complies with what

ought to be well known rules. However, standing the stage at which the case has reached,

the court will attempt to address the merits notwithstanding the differences in the sheriff’s

findings in fact, narrative of the evidence and note of his reasoning.

[25] The sheriff held, as a matter of fact (ff 8), that, as he phrased it, the conduct was

“genuinely alarming and disturbing to members of the public and would be alarming and

disturbing in its context to any reasonable person”. As already observed, none of the

witnesses spoke to the conduct being alarming. In the absence of a question challenging

them, the court is nevertheless bound by the facts as stated. However, if the sheriff intended

this finding to be conclusive of the test, it singularly fails. It does not address the need for

the conduct to threaten serious disturbance. On this basis, strictly, the questions in the

[26] The SAC expressed the view (supra) that the appellant’s conduct could readily cause

alarm in a reasonable person and disturbance in the community. That again, as was

conceded by the Crown, is not the correct test. It is, first, whether the conduct presented as

genuinely alarming and disturbing to any reasonable person and, secondly, whether it

[27] The appellant’s conduct may have been exhibitionist, provocative and even perverse.

None of these descriptions render it criminal. Although the wearing of clothing more suited

to a different gender has been held to constitute a breach of the peace in certain

circumstances (Stewart v Lockhart 1990 SCCR 390), the court is unable to hold that a man

wearing a bra in his own home amounts to conduct which is either genuinely alarming to

any reasonable person, although it may be to some, or that it threatens serious disturbance to

the community. It may, as the witnesses said, cause concern or be regarded as weird or

strange, and be classified, as the sheriff described it, as provocative, exhibitionist or even

perverse, but that is some distance from conduct meeting the Smith v Donnelly criteria. The

appeal is therefore allowed. The questions will be answered in the negative.

Scottish High Court of Justiciary Decisons