24 July 2010

Giving your papergirl your number: would this breach your peace?

Unusual, to have spotted two interesting cases in the Court of Session annals in one week (without casting any aspersions on the vivacity and literary style of the Senators of the College of Justice, of course). However, the appeal in the case of David Angus v. Procurator Fiscal, Perth is worth a look. Previously, I've expressed some misgivings about the uncertainty and breadth of the crime of breach of the peace in Scotland.  Uncertainties abound. The stated facts in David Angus furnish another example in the genre which I suspect some of you may find shocking. However, the result will likely calm any animal spirits which are conjured. Others, I suspect, will feel more ambivalent about it all. See what you make of the facts.

In 2009, the Procurator Fiscal laid the following complaint against Mr Angus before Perth Sheriff Court:

"On 11 June 2009 at Oakbank Crescent you did conduct yourself in a disorderly manner pass J born 10/09/1994, your newspaper delivery girl, a piece of paper with a message and your mobile phone number thereon, ask her to keep in touch with you, place her in a fear of state and alarm (sic) and commit a breach of the peace."

The facts were not disputed. A fourth year pupil in secondary school, the complainer "J" was 15 years old and delivered Mr Angus' newspaper. They had chatted briefly once before, making cursory and apparently friendly introductions only. On the day of the alleged breach of the piece, they had another short conversion, after which Angus took to his car. A short time later, on another street, he drew alongside her in his car, and the following occurred:

He said "I have a piece of paper for you" and handed it to her. He then said "We can keep in touch". She read the note and said "Okay". The note said "J here is my number keep in touch" and there was a mobile telephone number written on the paper.

Nothing further was transacted, no lewd asides or additional comment were made by the appellant. Even so, in his evidence Angus accepted that pressing his telephone number into the hands of a largely unknown teenage girl might not have been entirely appropriate, informing the Sheriff Court that he had resolved to apologise when next he encountered J. I can only assume that he never got the chance. Having phoned her mother expressing concerns, J finished her round and then returned home. J's mother then telephoned her daughter's supervisor, who came to her house and from there phoned the police. On the basis of the conduct thus outlined, the Sheriff convicted Mr Angus of breach of the peace. I don't care to defend the man's conduct. Who knows what motivated his cackhanded attempt at contact with the young woman, innocent, lecherous or nefarious. J's reported discomfiture seems to me entirely understandable. However, I don't see any justification for making assumptions about the young woman's exaggerated vulnerability and passivity either. Whatever his misplaced intentions, the facts on which this conviction was based appear to me to be pretty flimsy. Angus' lawyers clearly thought so too, appealing his conviction on the basis that the evidence lead did not disclose a breach of the peace. Explaining the opinion of the appeal court, Lord Brodie emphasised that:

"... not everything said and done in public amounts to breach of the peace, even if it might be said to be indecorous, inappropriate or irritating in nature."

Quoting Lord Coulsfield's judgement from the important Scots authority on breach of the peace, Smith v. Donnelly, he continued:

"... we think it sufficiently clear that something substantially greater than mere irritation is involved ... What is required, ... it seems to us, is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person ... the conduct must be 'flagrant' if it is to justify a conviction".

Of itself, does mysteriously handing a young woman your telephone number breach of the peace, assuming such attentions are unwelcome? Does her age matter? Probably, somewhat. If Angus had added some licentious observations to his billet doux or to his conversation, his conviction would almost certainly have stood. What about if she had been older, particularly above the age of consent? Different? If so, why so?  I'm sure you'll reign in your shock to discover that the Court's reasoning in this case is neither close nor clear. The very broadness of the offence of breach of the peace tends to enforce a sort of casuistry in judgement. As a result, it is almost impossible to confidently assess the boundaries of legality and illegality. In this case, the Court clearly found Angus' conduct unexplained but relatively innocuous, Lords Hardie, Brodie and McEwan holding that it didn't attain a minimal level of severity:

"... we cannot see what the appellant did and said to be such as to cause alarm to ordinary people and threaten serious disturbance to the community. The appellant's behaviour remains unexplained and, frankly, puzzling. He himself described it as "inappropriate". It is not something that a prudent person who did not wish to excite suspicion would have done. However, not all such behaviour is made criminal by reference to the law of breach of the peace."

As a result, they allowed his appeal against his conviction. Another dim speck of light illuminates the galaxy of conduct which might or might not be prosecuted as a breach of the peace. What do you make of it? A righteous rejection of an overreaching prosecution service? A failure by the appeal court to recognise the insidiousness of men's clumsy, potentially lusty predations on young women? For myself, I'd argue that prosecuting and penalising anyone for the bare conduct admitted by David Angus is totally unjustified, wildly disproportionate to whatever limited harm the fool might have caused. I can entirely understand J's discomfort and her mother's concern. But in the end, he only gave his papergirl his number.


  1. How old is Mr Angus? Having a car at seventeen and handing a note to a fifteen year old wouldn't (shouldn't)have raised an eyebrow, a bald potbellied fifty year old Mr Angus certainly would.
    Is there a sliding scale of justice?

  2. While the judgement is silent on the matter of his age, the case received some coverage in the Scotsman in which Mr Angus is identified as 50 years old and occupied as a quantity surveyor. I cannot vouch for his proportions nor confirm or deny any allegations as to the baldiness of his pate or the highness of his forehead, I'm afraid, Conan!

    On your second point, the answer is probably 'yes'. Gentlemen of more advanced years paying undue attention to young women are likely to find themselves in difficulty in a way that a younger man might well avoid. As to the legal standard, it is hard to say for certain in what circumstances and to what extent judges might hold that age differences between complainer and accused might be relevant when assessing if the behaviour complained of can be said to "be such as to cause alarm to ordinary people and threaten serious disturbance to the community." I'm no expert on the intricacies of Scots Law on breach of the peace - perhaps some sager soul might confirm or deny my hunch. As I mention, the rhyme and reason of breach cases can be exceedingly uncertain and obscure at times.

    That said, I suspect that if a more youthful taxi driver had echoed the suggestive and sexual remarks made by a 57 year old to a 14 year old schoolgirl in another recent case of breach of the peace, he too would have been up before the beak and received an unsympathetic hearing. The gratuity of Bowes comments in that case clearly distinguish it from this one. No need for me to cite them in detail here. Judgement in the Alexander Bowes case here, a briefer BBC press report on his unsuccessful appeal here.

  3. It is both heartwarming and enlightning to witness, that in this our communication enhanced day and age, that a young girl can find temporary employment as a delivereress of our Daily Blatts. Having spent many a weary morning dragging sodden newsprint around the mean streets of peripheral housing estates in East Kilbride, a mere 35 years ago, my vendor's bunnet is doffed in 'J's' direction.

    My only question of our erstwhile earnest and eager prosecution service, is this. Had Mr Angus been a Mrs Angus and 'J' a 15 year old paper boy, would such alacrity have been shown by our guardians of moral rectitude?

  4. For completeness, I wanted to quote my exchange with Randmhousekpr (Lily Greenan) on Twitter and her more dissonant analysis of the rights and wrongs of this case. Paraphrased in part, for comprehensibility.

    "I agree in part that Breach of the Peace is so broad it can be taken to trivial degrees. But have a concern about how acts are contextualised and understood. We live in the post stranger-danger era. Heightened awareness that young folk may be at risk from people they know, however slightly. His 'inappropriate' act should be viewed in that light. The issue is not what he did, but what it meant to the 15 year old. Whose peace was breached? Be interested to see how the C&J Bill amendment (post Harris) would frame it."

  5. Your younger self sounds like a diligent little creature, Mark. What luck, in my own callow case, that the area was too rural to lash me to my bicycle, an underaged and underpaid bringer of the area's news. Your second point raises the same issue, I'd respectfully suggest, as Conan's initial thought. What is the relevance of features of the accused or the victim to the definition of criminality, and hence, might it be a breach of the peace for X to do Y, but not a breach for Z to do Y - and crucially, is that a satisfactory approach to criminalising conduct?

  6. "What about if she had been older, particularly above the age of consent? Different? If so, why so?"

    Are you serious???

    50 year old man gives 15 year old girl his phone number and asks her to phone him.

    Mum reports man to police. Exactly what I would have done and I would have expected them to act on it!

    Whether or not the incident constituted a breach of the peace I am not qualified to say since I am not a lawyer.

    But the alternative is dad gives man a good kicking and tells him to stay away from his daughter!

  7. I'm certainly asking the questions seriously, Indy. They matter. Clarity matters. The questions need to be general, because that is how law functions. My main concern here was with the abiding uncertainties surrounding breach of the peace. They are, I think, not unreasonable concerns in the circumstances.

    Although I admittedly (and after a bit of vacillation on whether to include it or not) took a clear position on the facts disclosed at the end of the piece - I had intended my keynote to be questioning, rather than overly polemical for or against the Court's decision, on the law or on the "policy" of the thing. First and foremost, I should be clear - in many ways, this strikes me as a difficult case, amenable to a number of different constructions and critiques and analyses. I'm more interested in hearing and engaging with those arguments, rather than being dogged and overly partisan about it.

  8. If the girl was over the age of consent then I couldn't honestly see the point of attempting to make the matter criminal, provided the act involved nothing more than handing the young woman a piece of paper with a phone number.

    As for Conan's initial comments, I can see the relevance of the man's age, but not that of the fact that he might be bald and potbellied.

    Or might unattractive physical features be considered more likely to lead to a breach of the peace charge in such circumstances?

    And I can't make up my mind whether I'm joking or not on that point.

  9. The girl was sufficiently concerned to phone her mum.
    The mum was sufficiently concerned to phone the girl's supervisor.
    The supervisor was sufficiently concerned to phone the police.
    The police were sufficiently concerned to report the matter to the Procurator Fiscal.
    The Procurator Fiscal was sufficiently concerned to prosecute the appellant.
    The Sheriff was sufficiently concerned to convict him.
    The appellant himself described his own behaviour as 'not having been entirely appropriate'.
    The esteemed author of the this blog says "I don't care to defend the man's conduct" and that the girl's discomfiture was entirely understandable.

    The Appeal Court effectively says, "Calm down dear, it's only the kind of minor irritation that we all have to put up with. No crime here, move along".

    The point made by Indy is the important one - had the girl's father been passing at the time, then there may well have been significant violence done, and we would all (including the appeal judges) have understood why.

    In that context, the appellant's behaviour seems to me to clearly "threaten serious disturbance to the community" especially now that their Lordships have made it clear that there's precisely no point in phoning the police for such trivialities (ie it should be dealt with in the traditional fashion by dad and a baseball bat).

  10. I would far and away prefer that such incidents were dealt with by the police and not by dad and a baseball bat. I've always thought that we have police officers so we don't need to resort to the baseball bat.

    really this case seems pretty black and white to me. The definition and application of breach of the peace is something which I have no knowledge of - and to be honest no interest in. I appreciate that you do, but I just want the law to show a bit of common sense.

    Middle aged men should not be giving out their mobile numbers to 15 year old girls. No-one wants to turn the clock back to Jane Austen's days where young ladies had to be chaperoned at all times. But we ought to be able to depend on adults to behave appropriately around 15 year old girls and, when they do not, there should be consequences.

    It is not simply a minor irritation. How many parents of teenaged girls would be happy for them to take a paper round if they thought that this kind of thing would go unpunished? I'm not for a minute suggesting the guy should have been jailed but he should certainly have been punished and told in no uncertain terms never to approach a young girl again. As it is, I am sure the police will be keeping an eye on him in future.

  11. Incidentally I am not saying that it's always wrong for 50 year old man to give a girl his phone number - but if he had a reason he would surely have said so. For example if he was offering to coach her in tennis or give her a work placement in her holiday or some such thing, that would be fine. I am not a subscriber to the everyone is a pedophile unless proved othersise school of thought.

    But he did not give the court a reason why he handed the girl his phone number.

    That suggests to me that he did not want to give the reason. And tells me what the reason was.

  12. I very much appreciate the remarks of everyone who has commented. You've unpicked the issue marvellously and given me much to think about. In particular, you've made me pause somewhat when concerning the very difficult area of what should be encompassed by the lowest levels of infractions which are subject to criminalisation of one sort or another. I need to give that field of conduct and the values which should inform any analysis of it some more thought.

    I largely began by trying to hold both the general and the particular in my head at once, wondering precisely how the particular features of this case could be or might be transmuted into a formal authority on the extent of the offence of breach of the peace. Its a complex case, in that a number of elements might be teased out, including the appellant's age, his sex, the complainer's age, her alarm, his specific conduct and so on. I think those are relevant and important questions. As are those Conan began with, about how one case is distinguished from another and whether that is justifiable. However, I can entirely sympathise with these questions not interesting you Indy. Perhaps my concern to distil the general principle or rule from the particular instance is an unnecessary scrupulosity on my part.

    Equally, I increasingly sympathise with the more critical perspectives which Indy and others have outlined. In particular, while Almax' argument is ingenious (and if it wasn't, ought to have been adduced by the Crown at the appeal), I have my reservations about it. In particular, my mind starting turning to the other types of conduct which, in the same manner, might be expected to provoke friction and aggression threatening serious disturbance to the community. You might well think, such more innocent forms of conduct would fail on the first limb of the test, not alarming "ordinary people".

    A difficult case. To be approached with interested caution.

  13. I agree entirely that the court has to have regard to conduct that would alarm 'ordinary people'. It would be quite impossible to cater for the very easily offended or ultra-nervous in setting boundaries for public behaviour.

    Thus the Court is certainly correct in some instances to say "the complainer was alarmed, but that alarm was unreasonable, given the relatively innocuous nature of the conduct".

    Perhaps though it might be quite a difficult task in some cases for Senators of the College to decide what 'ordinary people' think in particular situations.

    My impression (and that's all it is) is that most 'ordinary people' are relatively content with the way in which the law deals with serious crime, but are substantially less than content with the way it deals with 'trivial' crime.

    And that's because what the judges and prosecutors might describe as 'trivial' can sometimes in fact be life-blighting for those who suffer it (eg if you live in a tenement building where some of the other tenants are constantly coming in late at night drunk and belligerent, vomiting in the close etc, then you may find it difficult to shrug it off as 'mere irritation')(These are not circumstances likely to occur regularly in the lives of the Senators).

    I hate to reduce it to this level, but might we enquire what Lord Brodie (who issued the judgement) might have made of it all had it been HIS 15 year old daughter who had been discomfited by the appellant's plainly inappropriate behaviour?

    A minor irritation? I think not.

    Superb blog, by the way.

  14. Thanks for your kind words, Almax. I try to divert!

    Your diagnosis might be right. I'm not a criminologist myself, so don't hold in my head any details from the pieces of research that have been conducted into Scottish public attitudes, affording a more deliberate attempt to gauge opinion on these matters.

    In general philosophical terms, I can't say I've ever found legal claims that judgements reflect or are determined by "ordinary views" of the "common man" terrifically convincing. It looks too much like a rhetorical stratagem. How extraordinary that the Ordinary Man always holds exactly the same opinion as me! The process is almost alchemical.

  15. But the "ordinary person's" view on this is surely very obvious. I cannot see how it could possibly be in doubt.

    Though I am not sure what the judges mean when they say"... we cannot see what the appellant did and said to be such as to cause alarm to ordinary people and threaten serious disturbance to the community.”

    Do they mean that the behaviour would not be enough to alarm ordinary people if it happened to them and threaten a disturbance? That is possibly true - most adult women would just have told the chap where he could stick his phone number.

    But if you asked the ordinary people how alarmed they would be if their 15 year old daughter told them that a middle aged man she met on her paper-round had followed her in his car and given her a piece of paper with his mobile phone number on it I think you would find that the overwhelming majority of them would be quite seriously alarmed and would want something done about it.

    If that behaviour cannot be made criminal, as they suggest, by reference to the law of breach of the peace then it ought to be made accountable in some other way.

  16. Indy,

    To be legal-tedious for a moment. The two-pronged "test", to dignify with certainty an uncertain standard, is (a) cause alarm to ordinary people and (b) threaten serious disturbance in the community. Unhelpfully, I italicised the quotation which I extracted from the judgement, but the judges put particular emphasis on the and in that sentence. I don't find their analysis particularly clear in terms of which of these two prongs they felt was too weak to uphold the prosecution. Alternatively, they may have believed that it failed to compel on both counts. My sense is that the doubts focussed on the second prong, threatening a serious disturbance. They didn't follow the causal argument advanced by Almax above, hence, the possibility of aggrieved and violent relatives probably aren't encompassed by the "threat" the Senators are referring to. Rather, I fancy, all they have in mind is the handing over of the number. Did that cause disturbance? Certainly. Was that disturbance sufficiently serious to fall within the ambit of breach of the peace? They think not. I'd argue that the decision hangs precisely on the construction one puts on the word "serious".

  17. I think I'm all out of ideas about the judgement itself, but can I just make a trivial and fleeting observation about the apparent error in the criminal complaint.

    The charge apparently concluded with the words

    "......place her in a fear of state and alarm (sic) and commit a breach of the peace"

    It's an interesting erroneous transposition of the well-worn and more traditional "place her in a state of fear and alarm and commit a breach of the peace".

    In fact, the transposition makes the charge literally meaningless, though it is probably saved in relation to relevancy by the inclusion of the essential words "and commit a breach of the peace".

    It's not clear from the judgement whether the error was ever noticed in the Sheriff Court, or whether any amendment was made.

    The phrase "place her in a state of fear and alarm and commit a breach of the peace" has probably been used in hundreds of thousands of criminal complaints over the years, and the transposition looks like it was the work of a prosecutor perhaps harassed, perhaps on auto-pilot.

    If so, then maybe the nature of the error is allegorical for what may be wrong in the legal system's approach to the crime of breach of the peace.

    However, let he who is without stone cast the first sin.

  18. For all of the above comments 'j' as referred to above was only 14 when this VERY strange matter occurred im her dad and having read all these views i never thought at the start of all this that it would be deemed a breach of the peace however i did and still do think there should be a law of some kind stopping adults passing there phone number to minors in the street which could easily be known as a start of grooming i sincerely hope that was not the case and that no crime is ever committed by the 50yr old man that comes back to haunt lord brodie. and i can quite honestly say that had i not been working on the morning this took place the actions that followed could and probably would have been far different

  19. I appreciate the age clarification, Anonymous. The judgement itself is the origin of the inaccuracy. You'll notice she was identified as 15 in its text. As to your second point, from the discussion here, I think it is fair to say that a number of people would share your concerns and want to see the conduct complained of criminalised. If not under the heading of breach of the peace, then some other offence.