[A-List] UK state: legal precedent

["Michael Keaney" <michael.keaney@xxxxxx>]

Change in mind for catch-all charge
BRUCE McKAIN
The Herald, 10 October 2002

BREACH of the peace has always been the prosecutors' flexible friend, with a
definition so wide that it covers almost the entire range of human
behaviour.

It can also attract a sentence ranging from the legal equivalent of a slap
on the wrist to life imprisonment.

In the past, the high court has stated that there is no limit to the kind of
behaviour that might give rise to a breach of the peace charge as long it
actually creates a disturbance or gives rise to a belief that there will be
a disturbance.

Lord Justice General Emslie said: "All that is required is that there must
be some conduct as to excite the reasonable apprehension that mischief may
ensue...."

In one case, a man who made indecent remarks in private to two women,
neither of whom was alarmed or annoyed, although one was embarrassed, was
convicted of a breach of the peace.

The political ramifications of the charge in times of national strife such
as a miners' strike are all too obvious.

The sheer width of the charge made it inevitable that it would be one of the
first to be challenged when the European human rights convention became part
of our domestic law and the challenge came last year from Faslane protester,
Pamela Smith.

She argued that the charge was incompetent under article 7 of the
convention, which says you can not be charged with a criminal offence unless
you know with a degree of certainty what the law is.

She contended that breach of the peace was such a vague charge that it would
be entirely possible to commit an offence without being aware of it.

Although Ms Smith failed in her argument, she paved the way for Tommy
Sheridan's acquittal at Helensburgh district court last year.

Although the appeal judges - Lords Coulsfield, Osborne and Caplan - refused
her appeal, they redefined the law in a way that seems to make it more
difficult to get a conviction. It now appears that Lord Cullen, Scotland's
senior judge, wants the whole breach of the peace issue reviewed so that the
law can be clarified.

The Crown is drawing up a list of cases covering a wide range of
circumstances to place before a five-judge bench.

In the Smith case., Lord Coulsfield said that, before you could commit
breach of the peace, your behaviour had to be severe enough to cause alarm
to ordinary people and threaten "serious disturbance".

"If there is no evidence of actual alarm, the conduct must be flagrant if it
is to justify a conviction. Flagrant is a strong word and the use of that
word points to a standard of conduct which would be alarming or seriously
disturbing to any reasonable person..."

The justice of the peace, Anthony Stirling, ruled that, under that
definition of the law, Tommy Sheridan did not commit a breach of the peace.

Mr Stirling said that many Faslane cases had come before him over the years
and added: "I cannot recall any involving violence. In the present case, it
had been agreed that Mr Sheridan's behaviour was non-violent.

"The key issue appears to me to be how far people can protest peacefully in
a democratic society. There was no evidence of serious traffic problems
caused by the protest. There was no evidence of alarm being caused to any
person and I could not see how any reasonable person would be alarmed by Mr
Sheridan's conduct."

-----

It is a law unto itself
Breach of the peace should be clearly defined
Leading article
The Herald, 10 October 2002

Scotland's centuries-old breach of the peace law is a catch-all offence. In
the past, a conviction could be secured for looking at someone the wrong way
if the gesture was deemed likely to cause a disturbance. But times change
and so does the law - up to a point. Breach of the peace has proved to be a
remarkably resilient law but the breadth, flexibility and range of
convictions it encompasses are causing the offence itself to appear in the
dock. It was there again yesterday when the appeal court was asked to
consider whether the acquittal last year of Tommy Sheridan, the Scottish
Socialist Party leader, on breach of the peace charges was the right
verdict. The Crown Office appealed the verdict but the three judges who
heard its submissions yesterday rejected them, concluding that the
magistrate who found Mr Sheridan not guilty had interpreted the law
correctly.

But the ruling does not mean that Scots law has a clearer definition of
breach of the peace. Each case depends on its own circumstances, as lawyers
never tire of reminding clients and courts. George Galloway, the Labour MP,
was convicted of the very same offence, in the same circumstances of which
Mr Sheridan was acquitted. A law as broadly defined as breach of the peace
is wide open to interpretation, especially with the European Convention on
Human Rights in force. Pamela Smith, another Faslane peace protester, used
the convention to mount a legal challenge last year against a breach of the
peace charge brought against her. She failed to convince the appeal court
that the vagueness of the law contravened the convention. But her case
resulted in a better definition of the law from Lord Coulsfield that,
paradoxically, worked to Mr Sheridan's benefit because it was the test
applied by Anthony Stirling, the justice of the peace who heard his case.

This states that conduct must be sufficiently severe to cause alarm to
"ordinary people" and threaten serious disturbance to the community to
warrant a conviction. Mr Sheridan's behaviour neither alarmed nor disturbed.
The Clyde base has been the focus for anti-nuclear demonstrators for many
years. Among their ranks have been churchmen and women as well as
politicians and many "ordinary people" who also find nuclear weapons
abhorrent. It is improper to criminalise them for exercising their
democratic right to legitimate, principled, peaceful protest. It is not easy
to apply the criminal law to legitimate protest. The task is made more
difficult when the law is as vague as breach of the peace.

That might suit police officers and the Crown who want to use a questionable
legal pretext to keep access to Faslane open by removing protesters sitting
in the road. But it does not necessarily suit the rights that underpin
democracy. The exercise of the law was lax for a long time towards fuel
protesters who blockaded refineries and threatened working drivers. Yet it
has been strictly applied to Faslane demonstrators who pose no danger, not
even in comparison. The risk of inconsistency will remain as long as the law
stays vague. The problem with breach of the peace is that it can be used for
political purposes because of its vagueness. A panel of five judges has been
convened to review breach of the peace. It will be very difficult to define
the law in a way that covers every circumstance. But the effort must be
made, because we must protect the right of peaceful protest.