Motorist’s breach of the peace conviction for ‘loitering’ and ‘following’ quashed

The Criminal Appeal Court held that the driver’s conduct, based on the findings in fact, did not justify a conviction of breach of the peace.

Lord Brodie, Lord Drummond Young and Sheriff Principal Stephen heard that in May 2013 the appellant “AM” attended an after school book fair with her three sons at their local primary school, where an “altercation” took place which resulted in the two classroom assistants staffing the event reporting the incident to the school management.

Shortly thereafter, the appellant and her children left the book fair in the family car, which the mother was driving, and as the two classroom assistants left the school AM was driving passed the playground in the same direction.

She then turned a corner and began travelling at walking pace towards the assistants, who were now walking in the opposite direction.

She then drove passed them, turned and passed them again before turning a corner and leaving the area.

Both assistants were alarmed by the appellant’s behaviour; one felt “very anxious and frightened” while the other felt “intimidated and scared”.

The appellant was convicted in September 2014 on a complaint by the procurator fiscal at Kilmarnock after trial in the JP court, after the justices rejected a submission in terms of section 160 of the Criminal Procedure (Scotland) Act 1995 that she had “no case to answer”, having previously repelled a plea to the competency of the charge.

However, the woman appealed by way of stated case and the court was asked whether the justices applied the correct test in refusing the no case to answer submission and whether, on the basis of the findings in fact, there was sufficient evidence to convict the accused of breach of the peace.

The judges held that while the justices were aware of and applied the relevant test in determining the no case to answer submission, they “erred in relation to both matters which require to be demonstrated to establish a case of breach of the peace”, namely, that the conduct complained of was severe enough to cause alarm to any reasonable person and to threaten serious disturbance to the community.

The court observed that although the justices found the witnesses, and , to have been actually alarmed by the appellant’s conduct, that was not determinative. It was also noted that information about what had happened in the course of the “altercation” at the book fair was not disclosed, and the context was limited to what appeared in the findings in fact.

Delivering the opinion of the court, Lord Brodie, said: “While the Justices were entitled to have regard to the evidence that and spoke of being in fear and alarm we do not share the justices’ view that this was not unreasonable ‘given the nature of their being followed’ at least if what the justices mean is that a reasonable person of average resilience would be alarmed by the conduct which is described in the findings-in-fact, and only that conduct.

“As far as the second matter is concerned the Justices took the view that ‘if the public at large were aware of or informed that a vehicle appeared to be loitering outside a primary school and following people, and the context in which it took place in, then it is reasonable to expect that they might react to that’.

“The justices went on to say that ‘we can readily envisage a situation where the public may find this disturbing, may wish to make inquiry of anyone behaving in such a way, and that some may wish to intervene to discourage or prevent it’. We consider this to be extreme but the premise is false, the appellant was not ‘loitering’, nor was she ‘following’ in the sense of repeated behaviour.

“The conduct complained of here occurred over a relatively short period of time. It involved and and no other person. The appellant, who was accompanied by her children, did not get out of her car. As the Justices record this was not a case where the appellant raised her voice. There was no shouting or swearing. There was no threat of violence. There was no revving of the vehicle’s engine. No honking of the horn. There was no staring.

“In these circumstances we would regard the prospect of serious disturbance to the community as being remote. In our opinion, whatever else may be said about the appellant’s conduct, it did not, on the basis of the Justices’ findings-in-fact, justify a conviction of breach of the peace.”