Masked anti-fox-hunting protesters lose appeal against statutory breach of the peace conviction

Colin Milne and Beverly Milne and their daughter Amy Lilburn were convicted of behaving in a “threatening” manner which was “likely to cause a reasonable person to suffer fear or alarm” after a sheriff found that, with their faces masked they followed a hunting party on foot then pursued two houndsmen in their car for several miles over a two-hour period after the hunt had ended.

The appellants claimed that the sheriff had erred in repelling a “no case to answer” submission, arguing that their conduct was “reasonable” as they were trying to determine whether the hunt was “lawful”, but the Sheriff Appeal Court ruled that the sheriff was “entitled” to conclude that the three elements of the offence had been established.

Sheriff Principal Mhairi Stephen QC, Sheriff Principal Marysia Lewis and Sheriff Peter Braid heard that the appellants were charged with (1) a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 and (2) a contravention of section 68(1) of the Criminal Justice and Public Order Act 1994 – “aggravated trespass” – in relation to a fox hunt in March 2015, which was organised by the head gamekeeper to the Snaigow Estate in Perthshire and comprised a number of people armed with shotguns, two houndsmen who managed a pack of 22 dogs and the gamekeeper who was in charge of the hunt.

At the close of the Crown case the appellants, who were also charged in the alternative with the common law offence of breach of the peace, made a submission of no case, which the sheriff repelled in respect of charge 1 and sustained in respect of charge 2 and the appellant were ultimately convicted of charge 1 following a trial at Perth Sheriff Court in January 2016.

However, the appellants submitted that the sheriff erred in respect of his decision on the no case to answer submission and also in convicting the appellants by failing to set out in what way the appellants’ behaviour was threatening.

It was also argued that the sheriff was not entitled to find the necessary mens rea of “recklessness” to convict the appellants.

Finally, in addressing the statutory defence afforded by s.38(2) of the 2010 Act, it was submitted that the appellants’ conduct should be considered “reasonable”, as their purpose on the day in question was “preventing or detecting crime”, namely investigating and monitoring the lawfulness of the hunt.

The advocate depute pointed to the detailed findings made by the sheriff in the stated case which “amply supported” the appellants’ conviction for a contravention of s.38(1) of the 2010 Act.

It was submitted that it was “simply not reasonable” for masked individuals to follow people in a car and on foot for two hours and then argue that this did not constitute threatening behaviour.

Such behaviour could not be categorised as reasonable and was “reckless” as to the consequences, the advocate depute argued.

The appeal sheriffs said they were “satisfied” that the sheriff “correctly” applied that appropriate test in determining and repelling the no case to answer submission on the section 38 charge.

Delivering the opinion of the court, Sheriff Principal Stephen said: “We are of the opinion that there was no error in relation to the sheriff’s assessment of the evidence led by the Crown in support of charge 1 and that evidence pointed to conduct which was threatening and would be likely to cause a reasonable person fear or alarm and would be severe enough to cause alarm to ordinary people and threaten serious disturbance in the community.”

She added: “To act recklessly is to have an utter indifference or disregard of what the consequences of their actings or behaviour may be as far as the public is concerned. In our view the persistence of the appellants’ conduct and pursuit of the complainers over a significant period of time when no foxhunt was taking place means that their behaviour may be construed as reckless in the sense of being utterly indifferent to the consequences of their actings to a reasonable person. The sheriff was therefore entitled to conclude that the three elements of the offence had been established.”

As to whether the behaviour of the appellants in the particular circumstances could be considered “reasonable” in terms of the statutory defence in section 38(2), the appellants’ stated intention from the evidence of the third appellant, Mrs Milne, was to find out if the hunt was illegal and gather evidence, but the court held that the facts and circumstances of the case “do not support the notion that the appellants’ behaviour was the product of rational thought”.

Sheriff Principal Stephen said: “Even allowing that a wish to prevent a criminal activity from taking place could, in certain circumstances amount to reasonable behaviour, if, as suggested, the behaviour of the appellants was a response to their belief that an illegal activity was about to take place, there were options available to them such as speaking to the complainers or contacting the police or indeed speaking with police officers, whom we were told were present for a short period at the Snaigow Estate, a matter accepted by the third appellant.

“In any event, as a matter of fact, there was no imminent illegal activity that required to be stopped and the evidence relied upon by the Crown and accepted by the sheriff is of a persistent pursuit for a lengthy period through country roads in Perthshire.”

She added: “The sheriff accepted the evidence of the complainers. Their evidence was not in any material sense contradicted by the third appellant’s evidence. The sheriff therefore was entitled to reject the suggestion that the appellants’ behaviour was reasonable, in the circumstances.”