APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lady Dorrian Lord Malcolm	[2011] HCJAC 8 Appeal No: XJ336/10 OPINION OF THE COURT delivered by LORD MALCOLM in causa DR JOHN McCALLUM First Named Appellant; and MICHELLE ANNE McCALLUM Second Named Appellant; against PROCURATOR FISCAL, EDINBURGH Respondent: _______

First Appellant: Ms Scott Q.C.; Belmonte & Co

Second Appellant: Ms Richards Q.C.; Beaumont & Co

Respondent: Carmichael, Advocate Depute

2 February 2011

[1] The first named appellant was charged on a summary complaint at the instance of the respondent as follows:

"(1) On 25 September 2008 at Napier Road, Edinburgh you JOHN MCCALLUM did conduct yourself in a disorderly manner and did wilfully obstruct and intimidate Rosaline Kinder, c/o Lothian & Borders Police and did deliberately stand behind her vehicle as she attempted to reverse, place her in a state of fear and alarm and commit a breach of the peace".

The second named appellant was charged as follows:

"(2) On 25 September 2008 at Napier Road, Edinburgh you MICHELLE ANNE MCCALLUM did conduct yourself in a disorderly manner and did shout and act in an intimidating manner towards Rosalind Kinder, c/o Lothian & Borders Police, bang on the rear of her vehicle and open the driver's door, place her in a state of fear and alarm and commit a breach of the peace".

After trial, both appellants were convicted in terms of the respective charges. The sheriff imposed a fine of £2,500 on each appellant. The first appellant appeals against both his conviction and the sentence. The second appellant was refused leave to appeal against her conviction, however she now asks the court to hold that her fine was excessive.

The first appellant's appeal against conviction
[2] In presenting the appeal against conviction on behalf of the first named appellant, Ms Scott, Q.C. explained that, subject to one qualification, the findings in fact made by the sheriff were not challenged. The findings in fact were as follows:

"(1) The Appellants and the said Rosalind Kinder (hereinafter referred to as "the Complainer") are next-door neighbours. Their houses sit on adjoining plots and are separated by a high stone wall at the rear.

(2) There has for a considerable period of time been certain unhappy differences between the McCallum family and the Kinder family with each having frequently reported the conduct of the other to the local Police.

(3) At about 4.30pm on the day of the incident, the Appellants' son Andrew told his parents that the Complainer had deliberately attempted to run him and his sisters down as they passed the entrance to her driveway. The First Named Appellant believed this and telephoned the Police to report this. This incident is hereinafter referred to as "the running down incident".

(4) On the date libelled, the Complainer was fetching and carrying her various children on the usual round of activities. At approximately 18.00 hours on 25 September 2008, she returned with her son then aged 5 in the back seat of the car to the rear gate of her house at 5 Napier Road, Edinburgh.

(5) Her back garden is divided from the public footpath and road by a high stone wall with a sliding gate in it. Said gate is electrically operated by remote control and she opened it from her car as she arrived in the street outside her house with a view to reversing her car into her rear garden.

(6) As the gate opened, the first Named Appellant and his son Andrew (14) arrived and stood in the gateway thereby blocking the Complainer's passage into her garden.

(7) As the Complainer was thus detained, the Second Named Appellant appeared from inside her house at 7 Napier Road and perpetrated her own breach of the peace by pulling open the Complainer's car door and beating on the rear portion of the vehicle with her hand.

(8) The gate is operated automatically by a timer and so will close approximately one minute after it has opened whether anyone or thing has passed through it or not.

(9) Because the Complainer could not reverse back into her garden on account of the presence of the First named Appellant and his son in her way, the gate shut after the allotted time.

(10) This process was repeated again at least once more.

(11) Throughout the whole incident, all members of the McCallum family, including both Appellants, had been laughing and treating the matter as a great joke.

(12) In the course of all of this, the Complainer was so concerned for her own safety that she had repeatedly sounded the horn of her vehicle to attract the attention of her husband whom she knew to be inside their house. In addition, this was directed at the First Named Appellant and his son in the hope of persuading them to stand aside from her garden gate.

(13) The husband of the Complainer appeared on the scene in response to his wife's tooting but was unable instantly to effect a resolution to the matter. He asked if the First-named Appellant had a problem. The First-named Appellant replied "Yes, I do. Your wife tried to run over my kids". At the request of his wife, the Complainer's husband very soon left the scene to go back inside and call the police.

(14) He was very fearful for the welfare and security of his wife and young child and so was unwilling to leave them.

(15) The Complainer's husband was particularly concerned for his welfare because he was at that time suffering from cancer and was undergoing a substantial course of drug treatment.

(16) The Complainer and her young son were both totally terrified by the combined actions of both Appellants upon them. Her young son received counselling in its aftermath.

(17) As this incident was happening, it attracted the attention of numerous neighbours in the street, many of whom had come out to see what was going on. The incident was effectively ended when one of these, a Ms Natalie Salvesen, a fourth year medical student, who was cycling past, felt unable to leave the incident and so left her bicycle in the roadway and returned to the scene. She spoke to the Complainer then entered her car, sitting in the front passenger seat and remaining there while the Complainer completed the reversing manoeuvre into her own garden. She then stayed with her for some minutes until it was clear that matters were at an end.

(18) All of the actions of both the Appellants were captured on a security CCTV system belonging to the Complainer and her husband and affixed to the rear of their house. This recording was produced in court and was seen many times in the course of the five days of the trial. No exception was taken as to its accuracy or relevance to the incident forming the subject matter of the charges against both Appellants. It truly reflected events which had transpired outside the Complainer's house and which were said by the Crown to constitute a breach of the peace by both Appellants as libelled.

(19) Further images on CCTV of an incident which occurred a short time earlier outside the Complainer's house (referred to In Finding 3 hereof) were available and viewed in the course of the trial. This incident had occurred about an hour or two before the event forming the subject matter of the charges on this Complaint, during which it was said by the boy Andrew McCallum, son of the Appellants, that the Complainer had deliberately attempted to run down himself and his sisters. Again, no exception was taken as to the accuracy or relevance of this sequence to the incident forming the subject matter of the charge on this Complaint. It truly and accurately reflected that earlier event, which is referred to hereafter as the "running down incident".

(20) The behaviour of the First Named Appellant amounted to conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. Something substantially greater than mere irritation was involved, and this was conduct which presented as genuinely alarming and disturbing, in its context, to any reasonable person, such as the neighbours and Ms Salvesen who were observing the same.

(21) The first Named Appellant was drunk when committing the above offence.

(22) The behaviour of the Second Named Appellant amounted to conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. Something greater than mere irritation was involved and this was conduct which presented as genuinely alarming and disturbing, in its context, to any reasonable person, such as the neighbours and Ms Salvesen who were observing the same".

[3] Ms Scott observed that findings 20 and 22 are not so much factual conclusions, as findings in law which led to the convictions. It was submitted that those conclusions, so far as directed against the first appellant, were unwarranted having regard to the facts and circumstances as found by the sheriff. Counsel invited the court to take the view that, though the first appellant had obstructed the complainer's vehicle and no doubt caused irritation, his conduct did not meet the test for the crime of breach of the peace laid down in Smith v Donnelly 2002 JC 65. In that decision it was held that breach of the peace is constituted by conduct severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community. Something substantially greater than mere irritation is involved. The conduct must be genuinely alarming and disturbing, in its context, to any reasonable person.

[4] With regard to the first appellant's conduct on the day in question, Ms Scott stressed the absence of any foul language or directly aggressive behaviour on his part. She noted that the sheriff spoke of "spontaneous concert" as between the two accused. However there can be no question of concert since both appellants were charged independently in respect of their own conduct. That said, counsel accepted that the first appellant's behaviour required to be assessed in the whole context of the overall event in which he participated.

[5] For the respondent, the Advocate depute submitted that the first appellant instigated then took an active part in a deliberate attempt to intimidate the complainer, who was isolated in her vehicle with her young son. The complainer, her husband, and a passer by, Natalie Salvesen, all regarded it as a very serious incident. The complainer was terrified for herself and her young son. Her husband was fearful for them and for himself. He decided to phone the police. In the overall context, including the background of disputes between the two families, it was submitted that the sheriff was fully entitled to convict the first appellant.

[6] We agree with Ms Scott's submission that it was inappropriate for the sheriff to refer to concert. Given the separate nature of the charges against each accused, neither could be held responsible for the conduct of the other. The charge against the first appellant has to be judged by reference to his own actions. However, they should be set and assessed in the overall context of the event in which he was an active participant. If and in so far as the sheriff took a different approach, in our view he erred. It follows that it is open to this court to form its own view on the matter.

[7] The question is whether the first appellant's conduct, all as described in the uncontested findings in fact, meets the requirements for the crime of breach of the peace as explained in Smith. We consider that it does. The sheriff made reference to the alarm caused to the complainer and her husband.

In our view the Advocate depute was justified in describing the first appellant's conduct as "intimidatory". The sheriff explained that if the first appellant had stood to the side, the complainer could have reached the safety of her own garden. In his stated case the sheriff made it clear that the so-called "running down" incident was nothing of the sort. In any event it could not justify such behaviour. Neighbours gathered in the street and Natalie Salvesen felt compelled to intervene in order to assist the complainer. With reference to the test laid down in Smith, and having regard to the unchallenged findings in fact, we are of the opinion that, even when being careful to look only at the first appellant's own conduct, when considered in its context it was sufficiently severe to cause alarm to ordinary people and threaten serious disturbance to the community. His conduct was genuinely alarming and disturbing to those aware of it. In these circumstances the appeal against conviction is refused.

The first appellant's appeal against sentence
[8] The first appellant has an annual net income in excess of £100,000, thus plainly he can afford to pay a substantial fine. He is a first offender. Counsel informed the court that the conviction may well have serious consequences for him. A meeting of the General Medical Council awaits the outcome of this appeal. He has now moved address, so there will be no repetition. The sheriff described this as "the worst breach of the peace" he had seen in the course of his shrieval career. We had the benefit of viewing the CCTV video of the events that day, and for our part we would not categorise the appellant's conduct as being at the most serious end of the spectrum for crimes of this nature. While in no sense minimising the alarm caused to the complainer and others, in the whole circumstances we are satisfied that the sheriff took an overly severe attitude towards the first appellant's conduct and that the fine imposed was excessive. We shall quash it, and substitute a fine of £750.

The second appellant's appeal against sentence
[9] The second appellant is also a first offender. Along with her husband she has moved away from the neighbourhood. In our view the sheriff erred by assessing her fine by reference to her husband's income. That said, this appellant does have an income of her own, albeit much lower than that enjoyed by her spouse. Again we consider that the sheriff took too severe a view. We shall quash the fine imposed on the second appellant, and substitute a fine of £400.