A man found guilty of committing a breach of the peace after he was seen by neighbours “parading around in a bra” in his own home and spotted “rubbing his nipples” by a passer-by has successfully appealed against his conviction.
The Appeal Court of the High Court of Justiciary ruled that the courts below applied the wrong test and that while the appellant’s conduct may have been “exhibitionist, provocative and even perverse”, it was not “criminal”.
The Lord Justice General, Lord Carloway, sitting with Lord Drummond Young and Lord Turnbull, heard that heard that the appellant David Wotherspoonwas convicted at Glasgow Sheriff Court in July 2016 of committing a breach of the peace.
‘Fear and alarm’
The charge libelled that on various occasion at his flat in Rutherglen he conducted himself in a “disorderly manner” by rubbing his nipples “in full view of the lieges whilst wearing female underwear”, placing the lieges in state of “fear and alarm”.
His appeal to the Sheriff Appeal Court (SAC), on the basis that the sheriff erred in repelling a “no case to answer” submission and “misdirected” himself on the requirements for a conviction of breach of the peace, was refused.
But the appellant argued that both the sheriff and SAC erred in determining that there was a case to answer.
The issue in the appeal to the High Court of Justiciary was ultimately whether the appellant’s behaviour amounted to a breach of the peace, in terms of the test set out in the case of the Smith v Donnelly 2002 JC 65.
The court was told that there was evidence that on four occasions between January and August 2015 neighbours in the same block of flats observed the appellant – either at his front door or at the windows of his ground floor property – “bare chested but wearing a bra”, with one of the sheriff’s findings in fact stating that one witness saw him rubbing his nipples.
The appellant was detained and told officers: “If it’s what I think it’s about, it’s because I’ve been wandering about in a bra.”
The witnesses spoke to feeling “uneasy” and “concerned” by the appellant’s “confusing” and “weird” conduct, but none referred to be “alarmed” or “disturbed”, yet another one of the sheriff’s findings in fact stated that the appellant’s conduct was “genuinely alarming and disturbing to members of the public and would be alarming in the context to any reasonable person”.
In his note the sheriff also described the appellant’s behaviour as “exhibitionist” and “deliberately provocative” and “designed to draw the attention of members of the public”.
On that basis he concluded that the test set down in Smith v Donnelly had been met.
The Sheriff Appeal Court upheld the sheriff’s decision, concluding that if considered objectively, “parading at an open door and in front of the living room window bare chested apart from a visible pink brassiere and on one of those occasions rubbing his nipples…could readily cause alarm in a reasonable person and disturbance in the community”.
However, the appellant submitted that while this behaviour could be described as “strange or embarrassing”, it was not so alarming or disturbing that it could amount to a breach of the peace.
The correct test
Allowing the appeal, the judges explained that the test of whether conduct constitutes a breach of the peace remains that in Smith v Donnelly, namely conduct “severe enough to cause alarm to ordinary people and threaten serious disturbance in the community”, which presents as “genuinely alarming and disturbing, in its context, to any reasonable person”.
“That test was framed so as to enable the crime of breach of the peace to be formulated with sufficient certainty to meet the requirements of the European Convention on Human Rights. Consequently, it is very important that the precise language is followed when applying the test,” Lord Carloway said.
However, in the present case neither the Sheriff Court nor the Sheriff Appeal Court applied the correct test.
Delivering the opinion of the court, the Lord Justice General said: “The sheriff held, as a matter of fact, that, as he phrased it, the conduct was ‘genuinely alarming and disturbing to members of the public and would be alarming and disturbing in its context to any reasonable person’. As we have already observed, none of the witnesses spoke to the conduct being alarming.
“However, if the sheriff intended this finding to be conclusive of the test, it singularly fails. It does not address the need for the conduct to threaten serious disturbance.
“The SAC expressed the view that the appellant’s conduct could readily cause alarm in a reasonable person and disturbance in the community. That again, as was conceded by the Crown, is not the correct test. It is, first, whether the conduct presented as genuinely alarming and disturbing to any reasonable person and, secondly, whether it would threaten serious disturbance to the community.”
He added: “The appellant’s conduct may have been exhibitionist, provocative and even perverse. None of these descriptions render it criminal. Although the wearing of clothing more suited to a different gender has been held to constitute a breach of the peace in certain circumstances, the court is unable to hold that a man wearing a bra in his own home amounts to conduct which is either genuinely alarming to any reasonable person, although it may be to some, or that it threatens serious disturbance to the community.
“It may, as the witnesses said, cause concern or be regarded as weird or strange, and be classified, as the sheriff described it, as provocative, exhibitionist or even perverse, but that is some distance from the conduct meeting the Smith v Donnelly criteria. The appeal is therefore allowed.”