‘White van man’ found guilty of breach of the peace charges fails in appeal against conviction

The Criminal Appeal Court ruled that a sheriff’s decision to repel a “no case to answer” submission was correct, in an appeal which raised issues concerning the scope of breach of the peace and the application of “mutual corroboration”.

The Lord Justice Clerk, Lord Carloway (pictured), sitting with Lord Bracadale and Sheriff Principal Stephen, heard that the appellant Edward Montgomery was given a community payback order after being convicted of three charges of breach of the peace following a five-day trial at Kilmarnock Sheriff Court in August 2014.

The first charge was that, at Saltcoats in February 2010, the appellant had on various occasions stared repeatedly at two 14-year-old girls as they walked home from school and placed them in a state of fear and alarm.

The complainer was passing a row of shops when she noticed the appellant, who she described as “scruffy” and “creepy” in appearance, staring at her continuously from a white van. She had the same experience when she went back to the shops some 15 minutes later.

The following day, she was again returning from school, this time with a friend, and both girls became aware of the appellant staring at them continuously while they walked towards and past the van.

The girls were so alarmed and disturbed that they went into a nearby shop and sought assistance, and a member of staff left the shop to take the registration number of the van of which the appellant was the registered keeper.

The second charge was that, at Dreghorn in April 2012, the apellant had attempted to entice an 11-year-old boy into a van which contained a mattress and bedding ‒ a different vehicle from that in the first charge ‒ by asking him “do you want to come into my van to get some sweets?”

The complainer, who was walking from his grandmother’s house at the time, was frightened and ran to a friend’s house. As he and his friend’s mother returned towards the scene the van was being driven away at speed, but the friend’s grandmother, who was passing by, was able to identify the appellant as the driver.

The third charge was that, at Ardrossan in May 2013, he had repeatedly stared at three children, two boys aged nine and 11 and a girl aged 12, and placed them in a state of fear and alarm. The three children were playing in a beach area bordered by a cul-de-sac along which a white van was driven.

The driver, namely the appellant, drove towards the children and stared continuously at them, causing them to run off. However, he speeded up to catch up with them, at which point he slowed to a crawl and started staring at them continuously again, causing the “panic stricken” children to run home in an “hysterical state”.

A no case to answer submission was made on the basis of “insufficient evidence” of identification on charge 2, even with the application of mutual corroboration, because that alleged offence was not similar in time, character and circumstances with those on charges 1 and 3.

It was also submitted that the conduct in respect of charges 1 and 3 did not constitute a breach of the peace, because it was not severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community.

The sheriff repelled the submission, but before the appeal court, the appellant maintained that the conduct was not severe enough to be classified as “genuinely alarming in its context, to any reasonable person”.

It was argued that the conduct required to be both severe enough to cause alarm to ordinary people and thereafter be capable of provoking serious disturbance to the community.

On the basis that the appeal against conviction on charges 1 and 3 were successful, there was insufficient evidence to corroborate either the identification of the appellant or the conduct in charge 2.

Refusing the appeal, the judges held that the appellant’s behaviour “did in fact cause alarm” to all the children involved and had prompted them to flee and bring their fears immediately to the attention of an adult.

Delivering the opinion of the court, the Lord Justice Clerk said: “It is important to guard against criminalising, or indeed criticising, the innocent actings of those whose unkempt or hirsute appearance in public may in itself cause fright to young children, or even adults. Nevertheless, the conduct in this case was, according to their evidence, genuinely alarming to all the children involved and to the adults who heard their de recenti cries for assistance.

“It was not simply that the appellant was said to have stared at the children, but that he did so repeatedly and over prolonged periods; factors which children and adults might reasonably regard as intimidating, if not threatening. In such circumstances, the sheriff’s decision, to repel this part of the no case to answer submission, was correct.”

On the issue of mutual corroboration, Lord Carloway added: “What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour libelled such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused. Such similarities were undoubtedly present here.”