APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lord Philip	[2012] HCJAC 158 Appeal No: XC207/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the appeal under Section 74 of the Criminal Procedure (Scotland) Act 1995 by HER MAJESTY'S ADVOCATE Appellant; against DAVID AXL BAILLIE Respondent: _______

Appellant: Fairley, QC, AD; the Crown Agent

Respondent: I M Paterson, solicitor advocate; Paterson Bell (for Gavin Orr, Dumfries)

12 December 2012

The Charges

[1] The respondent is charged with a variety of offences, which are alleged to have occurred in the locality at Kelloholm and Kirkconnel, Dumfriesshire. One of the charges (charge 5) is a racially aggravated breach of the peace in that, on 10 and 11 November 2011, while acting along with another, the respondent wrote offensive slogans in white paint on, and in the immediate vicinity of, the Kirkconnel war memorial. The memorial was daubed with "IRA", "PIRA" and "WAR CRIMINALS" on the night before the Armistice Day service.

[2] A further charge (charge 6) is in the following terms:

"...knowing that (DC) was a witness in a case against you, [you] did threaten said (DC) by means of letters sent to ... (SL) and in particular in a letter written on or about 27 November 2011 you did ask said (SL) to inform everyone that (DC) was a 'grass' and did state that you were going to slash him and further in a letter dated 6 December 2011 you did threaten to cut said (DC's) face open and threaten to kill him".

The two letters, which were written by the respondent from Dumfries Prison to his friend SL, were recovered from SL's possession and their content is not in dispute. It is clear from their terms that the respondent considered that DC had provided the police with false information about his (the respondent's) involvement in the war memorial incident. The first letter explains, in graphic terms, that the respondent was not at all pleased to be in prison and narrates that he knew nothing about the incident. It refers to DC as "that squint-eyed jonter bastard" and continues by asking SL to "Let every c**t ken that he's a grass n that he stuck me in". It states that the respondent is "gon tae slash the dafty". The second letter is in not dissimilar terms and states that "The next time a see that grassin bastard am gon tae cut his face open". It continues that if "the corrupt bastards find me guilty" he would "kill jonter" and "smash that scooper pr**k".

Preliminary Issues

Charge 6 Relevancy

[3] The respondent took a preliminary objection to the relevancy of charge 6. In essence, the submission was that there was no evidence that the threats had ever been communicated to DC or any third party, or that they had caused any distress to SL. In these circumstances there had been no completed crime. There was extensive canvassing of authorities. The sheriff concluded that it was helpful to broaden the categories of criminal threats, from the two mentioned in Gordon: Criminal Law ((3^rd ed) para 29.62), into three. These were: (1) the crime of uttering threats of serious harm directly to the person concerned (James Miller (1862) 4 Irv 238); (2) uttering threats in the context of another crime, such as inducing a person to commit perjury (Margaret Dunn and Ann McDaniel (1876) 3 Couper 271); and (3) uttering threats of serious harm against a third party communicated directly (as in the respondent's case) or indirectly (as in John Jaffrey (1815) Hume: Commentaries i, 441 footnote 2) to another party and intended to cause fear, alarm or intimidation to that other party. The sheriff held that since, in the respondent's case, the threats did not fall into any of these categories, there was no crime libelled. He also held that, in any event, a request to inform persons that an individual is a "grass" does not amount to a threat.

Admissibility of Evidence on Charge 5

[4] The respondent took a number of objections to the admissibility of evidence on charge 5. This appeal is now only concerned with two of these. The first relates to evidence of the recovery of a pair of trainers in the vicinity of the respondent's house. The second concerns the relevance of material found on the respondent's mobile telephone and in his bedroom at his parents' house.

[5] The evidence of the recoveries came from a police officer, who had become aware of the war memorial incident but had gone to the respondent's house in an attempt, following earlier (and apparently unrelated) instructions, to detain the respondent in connection with a separate matter. When the officer reached the house, he observed white paint on the garden steps and path. As a result, the officer suspected that the respondent might have been involved in committing the crime. The respondent had appeared at an upstairs window, but had refused to surrender himself. The officer did not consider that he was entitled, in the absence of a warrant, to force entry into the house. However, he did notice a pair of trainers on the front steps outside the house; the left shoe being dry but the right shoe being wet. The significance of the wetness relates to the need to cross a burn on one potential route from the war memorial to the respondent's house. The officer, who stated that it would have taken 2 to 3 hours to obtain a search warrant, decided to seize the trainers with a view to comparing them to shoe impressions which he had observed, and photographed, at the memorial.

[6] The officer took the trainers to the memorial, but the comparison proved unsuccessful. He then found an empty tin, formerly containing white paint, near the burn. He decided to return to the respondent's house and to detain him for defacing the war memorial. The respondent did not answer the door and the officer still did not consider that he had sufficient authority to force entry. He did, however, follow a trail of white paint round to the back door of the house, where he located a second pair of trainers, also wet, on the steps. They appeared to be a better match for the impressions. He seized these trainers. There was evidence led before the sheriff that this officer considered that the second pair of trainers were a match for the impressions at the memorial. However, the sheriff ruled that this evidence was not admissible because of perceived defects in the procedure adopted to secure the attendance of forensic scientists. The Crown do not challenge that ruling.

[7] The respondent objected to the evidence relating to the recovery of the second pair of trainers. This objection was sustained by the sheriff. Under reference to Renton & Brown: Criminal Procedure (6^th ed, paras 7-26/27), the sheriff held that, by the time the police had returned to the respondent's house for the second time, they were actively searching for evidence and not stumbling across items. The sheriff considered therefore that the search was irregular, in the absence of a warrant, and that this could not be excused on the grounds of urgency, even although he accepted that the officer was acting in good faith. He accordingly found that the evidence of the recovery of the second pair of trainers was inadmissible. Although his decision was influenced by his exclusion of the evidence of the comparison of the trainers with the impressions, the sheriff reached the view that, without the comparison evidence, the trainers had no evidential value as they could have been wet "for any number of reasons and it was pure speculation that the accused had come home via the burn". The sheriff held that the police had been acting in good faith but could, presumably legitimately, have "taken the shoes into safe custody pending application for a warrant to further detain the shoes and compare them with the impressions...". He did not consider that there was any urgency as a result, for example, of deteriorating weather conditions.

[8] Some weeks after the war memorial incident, the police decided to search the respondent's parents' home under a warrant. They seized a mobile 'phone belonging to the respondent, which contained photographic propaganda tending to show support for, amongst other organisations, the Irish Republican Army and the wartime German Nazi Party. Items were also recovered from the respondent's bedroom, which appeared to be associated with the British National Party, the Ku Klux Klan and, again, the Nazi Party. A swastika flag was seized.

[9] The sheriff sustained the respondent's objection to this material. In line with the respondent's submissions, he determined that the material was irrelevant to proof of the charge; holding that right wing extreme racist, white supremacist and ultra pro-British views, whilst abhorrent, were linked to a form of patriotism and that neither the BNP nor the Nazi party would have regarded the soldiers who fell in the World Wars as "war criminals". He reasoned that, while certain Nazi officials were condemned as war criminals in Nuremburg, it was not part of Nazi ideology that British soldiers, who had fought in the wars, were "war criminals". He commented that the Crown did not lead an expert historian to inform him otherwise. The relevance, for example, of images of Hitler and Himmler, which had been contained on the mobile phone, were said not to be relevant to the defacement of the war memorial with IRA slogans.

Submissions
Appellant
[10] The advocate depute submitted that the sheriff had erred in the three aspects of the case outlined above. First, in relation to the relevancy of charge 6, it was not necessary for there to be a specific mention of a nomen juris (Criminal Procedure (Scotland) Act 1995, schedule 3, para 2; Renton & Brown, Criminal Procedure (6^th ed) para 8-31). It was sufficient that the facts libelled disclosed a crime. Although the common law of criminal threats was not well-developed (WM v HM Advocate [2010] HCJAC 75, at para [17] under reference to Gordon: Criminal Law (3^rd ed) para 29.62), the uttering of a threat of grievous violence was criminal in itself (Macdonald: Criminal Law (5^th ed) page 128, under reference to John Jaffray (Hume: Commentaries i, 441 footnote 2; Christie: "Assault and Related Offences"; "Criminal Law"; Stair Memorial Encyclopaedia (re-issue) para 245; Gordon: Criminal Law (3^rd ed) para 29-62). It was not a requirement that the person to whom the threats were addressed was the target of the threat itself. The "mens rea" was to cause fear and alarm (Hume i, 441-442; Elizabeth Edmiston (1866) 5 Irv 219. This could be inferred from the terms of the threat and it was no defence to suggest that what had been done had simply been a joke.

[11] Actual fear and alarm was not necessary if intent could be inferred (Macdonald (supra) at 128, under reference to Margaret Dunn & Ann McDaniel (1876) 3 Couper 271). The libel of a serious threat was sufficient. It would be a question for the jury to determine whether the intention had been to cause fear and alarm. In holding that it was significant that no one had been alarmed, the sheriff had confused the crime of uttering threats with that of breach of the peace (Harris v HM Advocate 2010 SCCR 15). The sheriff had erred: (i) in holding that the libel was irrelevant because it did not aver the mens rea of the crime; (ii) in holding that there was a need for the threat to cause fear and alarm; and (iii) in stating that the content of the letter did not contain a threat directed towards DC, but rather a request to SL to advise people that DC was "a grass".

[12] Secondly, the Crown submitted that the Nazi material was highly relevant to a charge of vandalising of a war memorial. The Crown did not seek to introduce the material relative to the BNP or the KKK, but maintained that, in relation to a Second World War memorial, the fact that the respondent had Nazi sympathies was potentially relevant to the jury's consideration of him as the perpetrator.

[13] Thirdly, it was submitted that although, at the time of the recovery of the second pair of trainers, the police officers were conducting a "search", for which they had no warrant, this search was not an irregular one, as the sheriff had thought, in view of the degree of urgency. The sheriff had misunderstood the position. A search without warrant is legitimate in a situation of urgency (HM Advocate v McGuigan 1936 JC 16). Even if the search had been an irregular one, it did not follow that the evidence should be excluded. The sheriff had accepted that the police officers had been acting in good faith and had considered that the seizure was a matter of urgency. Although he had not addressed the matter, there was a minimal interference with the respondent's privacy, given the location of the shoes. Even although the sheriff had focused on the fairness of the comparison exercise, there was no obvious unfairness in admitting the wet condition of the trainers as relevant to whether the wearer had crossed the burn and had thus been at the war memorial. On the basis that the matter was at large for this court, if there was a search, it was not an irregular one, and if it had been irregular, it was excusable.

Respondent
[14] The respondent maintained that the letters had been private communications to a friend. In that respect, the position was distinguishable from John Jaffray (supra), where the letter had been left outside a house and had been intended to have its content relayed to other individuals. It would be an extension to the existing law to decide that sending a private letter was criminal. The sheriff had not erred in holding that charge 6 did not disclose a criminal act since a threat of violence was not per se criminal (Kenny v HM Advocate 1951 SLT 363).

[15] The sheriff had accepted that, in seizing the training shoes, the police officers had been conducting a search for evidence. The police could easily have obtained a warrant and, whilst doing so, could have stationed an officer by the trainers to prevent their removal. The search had been unlawful, albeit that the officers may have been acting in good faith. The respondent was in the category of suspect at the material time and the police had engaged in a search of the respondent's garden.

[16] In relation to the Nazi material, the respondent was entitled to a fair trial and the sheriff had been correct in holding that any Nazi sympathies, which were held by the respondent, were irrelevant to the charge. This material would have an inflammatory effect on the jury. There had been no Nazi slogans painted on the memorial.

Decision
Relevancy of Charge 6

[17] The issue is whether charge 6 relevantly sets out a criminal act; not whether there is sufficient evidence for a conviction. The sheriff has held that the libel is irrelevant because the threats were against DC but communicated to SL and SL, the sheriff states, was not in fact alarmed by them. Whether the latter statement is correct or not is uncertain, in the absence of proof, but it is not a material consideration when determining the relevancy of the charge.

[18] The uttering of a threat of violence towards a person is not, per se, a crime. This is clear from Kenny v HM Advocate 1951 SLT 363, in which the jury convicted the appellant only of threatening violence towards an individual under deletion of a reference to an intention to intimidate or to deter that individual from giving evidence against the appellant in a forthcoming trial. As was submitted by the appellant in that case, the jury's verdict had negatived any unlawful motive and there had been no evidence (or libel) that serious injury had been threatened. Lord Keith explained (p 364) that, the jury having deleted the reference to intention, what remained would not have constituted a relevant charge. Lord Russell stated (p 364) that the result of the jury's verdict: "was to convict the accused merely of uttering a verbal threat to do violence, without any further specification relevant to infer grievous bodily harm or sinister intent" (emphasis added). This explains the circumstances in which the uttering of a threat can constitute a crime.

[19] First, a threat to do serious injury to a person, whether oral or written, is criminal in itself (Macdonald: Criminal Law (5^th ed) p 128; Hume: Commentaries i, 439 - 440; Alison: Principles 579). This was, as in Kenny (supra), the view taken in James Miller (1862) 4 Irv 238, where the Lord Justice Clerk (Inglis) explained (pp 244 - 246) that there were two classes of threats: first, those which involved "grievous bodily harm, or to do any serious injury to his property..."; and, secondly, those in a "much larger class" which contemplated lesser or vaguer harms. Only the former were criminal per se, while the latter might acquire criminal status if they were used for an unlawful purpose, such as extortion.

[20] There can be no doubt that the libel in the respondent's case, which involves threats to slash and kill the witness DC, is sufficient to bring it into the category of cases where the threat is criminal per se. Furthermore, it is significant to note that the libel also proceeds upon a narrative that the threat is directed towards DC against a background of DC being a witness in the case against him. On that basis, the libel would be relevant as a species of threat in the second category, being threats made with an ulterior unlawful purpose; the latter being, presumably, to persuade DC to alter his evidence in a manner which would no longer incriminate the respondent (see eg Margaret Dunn and Ann McDaniel (1876) 3 Couper 271).

[21] For the crime to be completed, it is not enough that the threat simply be spoken or written. It must be communicated to a third party (Macdonald (supra) p 128). However, it is not a requirement that the threat be conveyed directly to the party threatened. Communication to a third party will suffice (John Jaffray (1815) Hume i, 441, footnote 2).

[22] As with almost all common law crimes, the act must be done deliberately. The accused must have intended to do the act. Threatening a person is no doubt, in the ordinary case, motivated by a desire to cause that person, or a third party to whom the threat is communicated, fear and alarm and/or to do something which he would not otherwise have done. However, it is not necessary, for a libel to meet the test of relevancy, that it specify either motive or result. Unlike breach of the peace, where the acts may not be unlawful when looked at in isolation, the communication of a threat of serious harm to the potential object of the harm or to a third party, is itself unlawful. The necessary criminal intent is inferred from the carrying out of the act itself (Elizabeth Edmiston (1866) 5 Irv 219, LJC (Inglis) at 223). It is no defence that, for example, the act was intended to amuse in a situation where, objectively, it was likely to cause fear and alarm.

[23] In the respondent's case, the libel alleges that the respondent's actions in writing the letters amounted to a threat directed towards DC. The terms of the letters are indicative of a desire to have the respondent's threat communicated by SL to DC, one way or another. In this context, the jury would be well entitled to the view that advising members of the local community that DC was a "grass" was an act intended to put some form of pressure on DC to retract whatever statement he had given. It matters not whether an accusation of "grassing" might, using the sheriff's phraseology, "besmirch" a person's reputation in all circumstances but whether, within DC's social circles, this would be the consequence.

[24] Accordingly, the court will allow the appeal in so far as the sheriff "dismissed" charge 6.

Objections to the Evidence

Trainers

[25] The court doubts whether the actions of the police, in walking around to the back door of a house, involved such an invasion of a person's right to privacy or property that a search warrant would normally be required. However, proceeding on the basis that it would, such search as the police carried out would only be classified as "irregular", requiring excusal for the admissibility of any evidence recovered, if there were no urgency in the situation. If the police were acting in circumstances of urgency, no warrant would be required and the search would have been "quite regular" (HM Advocate v McGuigan 1936 JC 16, LJC (Aitchison) at 18).

[26] The police had gone to the respondent's house on the second occasion with a view to detaining him on suspicion of defacing the war memorial. Having discovered the second set of trainers, they had the option of either seizing the trainers there and then or leaving the premises and seeking a warrant to search the premises and thereafter returning to the premises in the hope that the trainers would still be there.

[27] The situation was that the respondent's house was located within private garden ground, which was accessed through a gate. If the police considered that a search warrant was required to enter the respondent's premises, they would have been compelled to leave the house (and garden) pending its receipt. They would have had no authority to remain at the back door guarding the trainers if they had been asked to leave. The court is not aware that any intermediate lawful step of "taking [items] into safe custody pending application for a warrant to further detain" them exists. Where items are taken from private property, they are either seized under the authority of a search (or other) warrant or they are not. If they are not, they are either lawfully seized by virtue of a regular search, such as one taking place in a situation of urgency, or they are not. In the latter event, they will only be admitted in evidence if the seizure is excused applying the principles of fairness, including the balancing of public and private interests, set out in Lawrie v Muir 1950 JC 19.

[28] The problem with finding the trainers on the back door step was not so much that the weather conditions might have caused the impressions to disappear, were the police to have elected to await a warrant. The risk was that, were the police to have spent 2 or 3 hours obtaining a warrant, the trainers might well no longer have been available for seizure upon their return to the garden. In the circumstances set out by the sheriff, where it was accepted that the police had acted in good faith throughout and considered that there was urgency in seizing the trainers, it is impossible to draw any conclusion other than that there was a situation of urgency which merited seizure of the trainers there and then. Whether their wetness is significant is a matter primarily for the jury to resolve, but the court cannot agree with the sheriff that it has no evidential value or that the trainers could have been wet "for any number of reasons".

[29] Even if the search had been irregular, it is of importance to note that the degree of invasion of the respondent's right either to privacy or property was minimal. No entry into private property was forced. The police had not been asked to leave the premises and refused to do so. Where such minimal infringement is involved and the evidence recovered may have significant value, the case becomes one where excusal of any irregularity is merited.

[30] The court will accordingly allow the appeal on this aspect and repel the objection to the evidence of the recovery and condition of the second pair of trainers set out in paragraph 2(i) of the respondent's minute.

Nazi and IRA Material

[31] The court is unable to agree with the sheriff's view of history. The crime alleged involves the vandalising of a memorial to the fallen in, amongst other conflicts, the Second World War. The act involved writing "war criminals" on the memorial. This, on one possible interpretation, suggests that the perpetrator regarded those who had fought against fascism in the war as "criminals". It may be that the perpetrator did not have a particularly knowledgeable view on the rules of international conflict or a sophisticated approach on what persons should be categorised within the international regime as "war criminals". A jury would be entitled to the view that the desecration of a war memorial would be more likely than not to be carried out by a person with sympathies for those on the other side of the conflict from those named on the memorial. In these circumstances, evidence of sympathy for the Nazi party would be relevant to a jury's consideration of the case against the respondent.

[32] This court was not asked to express a view on whether the material, which suggested support for the BNP and KKK, ought also to have been admissible. Suffice it to say, on the assumption that it is reasonable to classify the actions of the fallen as having been taken in the interests of democracy and freedom and directed against the spread of fascism, it may be that any material displaying sympathy for ultra right wing interests should be regarded as relevant to a jury's consideration. This is so even if it may be difficult to ascertain the link in the alleged perpetrator's mind between right wing groups and the IRA or between his views on authority and that of fascism.

[33] The court will again allow the appeal and repel the objections set out in paragraphs 2(iv) to (vi) of the respondent's minute in so far as they relate to material tending to show sympathy for the Nazi party.