Smith (Pamela) v Donnelly 2002 JC 65

January 31, 2009 | No Comments
The case concerned an anti-nuclear protestor who was charged with “breach of the peace” in respect of her actions intended as a protest against the use of nuclear weapons in lying in a road outside a military base and so causing a disruption to traffic on the highway.    She argued that the offence of breach of the peace in Scots law was not sufficiently or clearly defined so as to comply with the requirements of Article 7 ECHR, submitting that the courts’ interpretation of the offence of breach of the peace in Scotland, had over the years become so wide and applicable to almost any course of conduct that the offence could not reasonably be deemed to comply with the requirements of Article 7.  The Crown argued that while past case law showed the method of committing the offence of breach of the peace had wide variations and a variety of actual circumstances, but that did not alter the essential definition of the crime.   In rejecting the accused’s challenge to the Convention compatibility of the offence with which she was charged, the court held that to constitute the crime of breach of the peace, conduct severe enough to cause alarm to an ordinary person and to threaten serious disturbance to the community. [1]    Mere annoyance or irritation were insufficient but rather conduct which was genuinely alarming or disturbing to the reasonable person was required.    The court did advise that bearing in mind the terms of the convention, it might be appropriate in any charge to include specification of the conduct alleged to have caused the breach of the peace.

 

 

[1] See, too, Paterson v. HM Advocate, 2008 SLT 465, HCJ at paragraphs 22-23 considering the potential use of a charge of breach of the peace to convict an individual accused of lewd, indecent and libidinous behaviour toward a seventeen year old:

“In Smith v Donnelly, 2002 JC 65 this court examined the existing authorities on breach of the peace with a view to determining whether bringing proceedings on such a charge, as developed, violated the requirements of art 7 of the Convention (no punishment without law). The court held that, on a sound interpretation of these authorities, the definition of the crime was such as to meet the requirements of the Convention. … In the context of behaviour towards a 17 year old girl by a man 20 years her senior the conduct was, in our view, severe enough to cause alarm to ordinary people. … The conduct does not require to cause serious disturbance to the community. It is sufficient that it threatens such disturbance. Such conduct by a mature man towards an adolescent girl was such that, if discovered, was likely to cause a serious reaction among other adults. In these circumstances the nature of the conduct was such that, if proved, it constituted on each occasion breach of the peace.

[...]

Although the two elements in the conjunctive expression [conduct severe enough to cause alarm to an ordinary person and to threaten serious disturbance to the community] may include common elements and the same evidence in particular circumstances may cover both, they focus on different things. In particular, the former element highlights the objective character of relevant alarm while the latter highlights the community aspect of the offence. Any definition of breach of the peace should use the conjunctive.”

 

 

Smith v. Donelly (35)

Art. 07 No Punishment without Law

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Formed in May 2009, the Scottish Human Rights Law Group is a non-affiliated, independent, professional network for those engaged in legal practice and study, in academia and politics, in campaigning and in the provision of advice. It exists to raise awareness and knowledge of human rights law in Scotland, and to provide a forum for discussion of matters of interest across the field. The group organises seminars and roundtable discussions on human rights and is accredited for the purposes of CPD.