Breach of the peace conviction for ‘smiling and winking’ at schoolboy quashed

A man found guilty of a breach of the peace after smiling and winking at a 12-year-old on a bus and writing his phone number on the back of his bus ticket before passing it to the schoolboy has successfully appealed against his conviction.

 

The Sheriff Appeal Court sustained the appeal after ruling that while the appellant’s behaviour could be considered “inappropriate and imprudent”, the summary sheriff erred in concluding that the conduct met the test of being “genuinely alarming” and “likely to threaten serious disturbance to the community”.

 

Sheriff Principal Ian Abercrombie QC, sitting with Appeal Sheriff Sean Murphy QC and Sheriff William Holligan, heard that the appellant Douglas McConachie, 65, was convicted of breaching the peace at Aberdeen Sheriff Court in October 2017, having originally been charged under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, but at the conclusion of the Crown case the procurator fiscal depute properly conceded that there was “insufficient evidence” to prove the statutory charge. 

 

 

The defence submitted that there was “no case to answer” in respect of the common law alternative of breach of the peace, but the summary sheriff repelled that submission and proceeded to convict.

 

The summary sheriff found that the complainer was going home after school on a bus when he became aware that the appellant was intermittently smiling and winking at him. 

 

The appellant wrote his name, address and phone number on the back of his bus ticket, and as he was alighting from the bus he placed the ticket on top of the complainer’s gym bag, which was on his lap. 

 

Another passenger saw this and also observed the appellant making a gesture towards the complainer after he had got off the bus suggesting that the complainer phone him. 

 

The complainer continued on his journey home feeling “stressed and uncomfortable”. 

 

The other witness thought “it didn’t seem right” and “it seemed off” because it did not look as if the appellant and the complainer knew each other.

 

Repelling the no case to answer submission, the summary sheriff had regard to the test set out in the leading modern case on the subject of breach of the peace, Smith v Donnelly 2002 JC 65, and further considered that the case of Bowes v Frame 2010 JC 297 supported the Crown case.

 

 

In proceeding to convict, the summary sheriff considered that the complainer had been “alarmed” by the appellant’s behaviour, in public, and that the conduct had been severe enough to cause alarm to ordinary people and to “threaten serious disturbance to the community”.

 

In the appeal it was accepted that the sheriff had been correct to apply the test in Smith v Donnelly, but it was argued that he had erred otherwise. 

 

Bowes v Frame fell to be distinguished on a number of grounds, as in that case a taxi driver repeatedly made sexually suggestive remarks to a 14-year-old girl whom he was driving to school.

 

The conduct had taken place in private but had been much more serious than in the present case and was of such a nature as to be genuinely alarming and to threaten serious disturbance to the community.

 

In the present case nothing had been said – the appellant and the complainer had at all times been in full public view and there had been no contact between them beyond the placing of the ticket onto the top of the complainer’s bag. 

 

In the case of Angus v Nisbet 2011 JC 69, which had not been placed before the sheriff, the appellant had repeatedly approached a teenage newspaper delivery girl in a public street and had passed her a piece of paper with a message and his mobile telephone number on it, asking her to keep in touch with him.

 

The High Court of Justiciary held that the conduct complained of was not such as to cause alarm to ordinary people and threaten serious disturbance to the community and the appeal was successful. 

 

It was submitted that the behaviour complained of in that case was “more serious” than in the present case because the girl had been approached more than once and the accused had actually spoken to her.

 

 

Allowing the appeal, the court observed that the circumstances of the present case were much closer to those in Angus v Nisbet.

 

Delivering the opinion of the court, Sheriff Principal Abercrombie said: “Everything which occurred took place in public view. The appellant did not seek to engage in any conversation with the complainer. No physical contact took place beyond the placing of the ticket on top of the bag which was on the complainer’s lap. The final gesture was made after the appellant had alighted from the bus. 

 

“There was nothing threatening about the appellant’s conduct at any stage. While the complainer was ‘stressed’ and ‘uncomfortable’ over what had happened, and that is understandable, the adult witness who observed a part of the encounter thought it ‘did not seem right’ and ‘seemed off’. 

 

“In these circumstances we cannot agree with the summary sheriff that the conduct meets the test of being genuinely alarming and disturbing to any reasonable person and that it was likely to threaten serious disturbance to the community. 

 

“The appellant’s behaviour can be considered inappropriate and imprudent conduct towards a child whom he did not know but we respectfully agree with the observation made by the High Court at paragraph 15 in the case of Angus v Nisbet that not all such behaviour is made criminal by reference to the law of breach of the peace.”