APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Brodie Lord Philip	[2014] HCJAC 73 XC662/13   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE   by   WILLIAM JAMES KILPATRICK Appellant;   against   HER MAJESTY’S ADVOCATE Respondent:   _____________

Appellant: CM Mitchell; Virgil Crawford, Stirling

Respondent: Bain AD; the Crown Agent

 

2 July 2014

[1]        On 13 September 2013, at Stirling Sheriff Court, the appellant was found guilty of a charge of breach of the peace.  He had originally faced an indictment which libelled that:

“on 24 April 2011 … you … did conduct yourself in a disorderly manner and did post a message which was of an offensive and threatening nature to a social network site to which the public had access and commit a breach of the peace”.

 

[2]        The case has a prolonged history, commencing with a first diet on 10 April 2012, almost a year after the offence.  Thereafter, at least another 12 further first diets took place and relative trial diets were postponed.  In the midst of these, there was a debate extending over several days in May 2013.  On one of those days the respondent was allowed to amend the indictment by deleting “to which the public had access” and adding “place [RH] in a state of fear and alarm” after the word “site”.  At a further first diet of 5 September 2013, the respondent was allowed to amend the indictment again by inserting “incite others to commit violence” after the word “site”.   The appellant was convicted of the charge as amended.  This thus read:

“on 24 April 2011 … you … did conduct yourself in a disorderly manner and did post a message which was of an offensive and threatening nature to a social networking site, incite others to commit violence, place [RH] in a state of fear and alarm and commit a beach of the peace.”

 

On 23 October 2013, the appellant was sentenced to 9 months imprisonment. 

[3]        The evidence was in relatively short compass.  It was not disputed that on 24 April 2011, which was the day of a match between Rangers and Celtic, the appellant had posted onto his friends’ pages on Facebook the words:

“Neil Lennon’s a f… c…  Get mare (sic) bullets and bombs sent boys.  Glasgow Rangers Champions”.

 

It was estimated by the principal witness, RH, that the posting would have been sent to hundreds of the appellant’s “friends”.  This was against a background of news media to the effect that bullets had recently been sent to the then Celtic manager, and bombs and other packages had been sent to others connected with that Club.  The posting was reported to the police by RH. 

[4]        The appellant did not give evidence but, during the course of an interview with the police, which was said to constitute a mixed statement, he had said:

“I did write that aye, it was just for a bit of banter.  I wasn’t meaning anything serious about it”.

 

[5]        The appellant lodged a Note of Appeal containing 2 grounds relative to conviction.  The first was said to be essentially narrative and was that the sheriff had erred in allowing the libel to be amended by introducing the averment of incitement.  The second ground was that the sheriff had misdirected the jury in failing to address the issue of the “mens rea” of incitement.  Although it was accepted that, in the normal case, there did not require to be evidence that an accused intended any particular result in respect of an allegation of a breach of the peace, the libel here had been converted into one whereby the appellant had incited persons to act in an unlawful manner.  For the jury to have convicted of that part of the libel, they required to find that he had had the appropriate “mens rea”. 

[6]        The sheriff had given the jury the standard directions on breach of the peace to the effect that the conduct must be

“severe enough to cause alarm to ordinary people and threaten serious disturbance to the community.  It involves causing substantially more than irritation.  It is conduct which … in the particular circumstances … is genuinely alarming and seriously disturbing to any reasonable person.  It must also threaten public safety or serious disturbance to the community.  There does not need to be evidence of the conduct having that result.  It is enough if you decide that that result reasonably could be expected.  It is enough that a reasonable person would be likely to be distressed or alarmed and that the public peace would be compromised having regard to the nature of the conduct and the circumstances and context in which it took place.  There does not need to be evidence that the accused intended that result.  Again, it is enough if you decide that such a result was likely.  It is the potential of the conduct you look at.”

 

In a later passage, the sheriff also directed that, if the jury accepted that it was just “banter” and not a serious threat of disturbance and if the jury did not consider the conduct genuinely alarming and seriously disturbing etc, they would acquit.

[7]        In submissions, ground 2 was addressed first on the basis that it was effectively determinative of the appeal.  The contention was that the sheriff ought to have directed the jury that, in order to incite others to violence, the appellant required to have an intention to do so.  Incitement could not happen by accident or inadvertence.  The direction which the sheriff had given about banter appeared to be contradictory to his earlier statements on what was required for a conviction of breach of the peace.  If the inclusion in the libel of incitement did require such a direction, then the proposition that the amendment should not have been allowed was sound, since that inclusion changed the character of the offence (see the Criminal Procedure (Scotland) Act 1995, s 96(3); Renton & Brown Criminal Procedure (6^th ed) para 8-70).  The sheriff’s analogy of a breach of the peace containing a libel of fighting not requiring a direction on the mental element in assault, was not apposite, given that in that situation it would be open to an accused to plead self-defence, thereby requiring appropriate directions on intent (see Derrett v Lockhart 1991 SCCR 109, LJC (Ross) at 111). 

[8]        The Crown founded upon, in particular, Ralston v HM Advocate 1989 SLT 472 to the effect that proof of mens rea, although required for a breach of the peace, was established by reference to a person’s actings and not any intended result.  If the appellant’s conduct, whatever it might have been, was deliberate or reckless and causally connected to the requisite alarm or disturbance, that was sufficient to establish the requisite mens rea. 

[9]        This was a charge of breach of the peace in which the jury were correctly directed that there is no requirement that the accused must have intended a particular effect of his actions.  The definition of the crime, as established in Smith v Donnelly 2002 JC 65, involves behaviour of the type accurately described by the sheriff in his charge (supra).  The issue for the jury was simply whether the conduct met the test in Smith v Donnelly (supra).  The jury decided that it did.  The introduction of an averment of incitement did not alter the character of the charge, which remained one of breach of the peace.  In this context, it did not matter whether the appellant intended to incite others to commit violence.  It was sufficient that the content of his message, which included a statement that his friends should get more bullets and bombs sent, objectively considered, was calculated to incite others to take that action or to provoke a disturbance in resistance to it. 

[10]      The jury rejected the idea that the conduct was “just banter” and not genuinely alarming and seriously disturbing etc.  It follows from that, that the amendment did not change the character of the offence or the nature of the facts libelled.  All that the offence consisted of, in terms of the libel in its original or amended form, was the posting of this particular message on Facebook.  The question remained simply whether that amounted to a breach of the peace.  The appeal against conviction is refused.

[11]      In relation to sentence, the appellant was in full time employment and lived with his parents and family.  That is still the position.  He earns about £900 per month net. He had no previous convictions.  In his sentencing remarks, the sheriff accepted that the appellant was unlikely to reoffend, certainly in an analogous manner.  He accepted also that the appellant had not appreciated the gravity of the posting.  However, he had wider concerns and, in particular, founded upon the fact that the conduct involved inciting others to commit violence.  The serious part of the libel, according to the sheriff, was the encouragement of people to send bombs and bullets to the Celtic manager, who had already suffered from this type of conduct.  Ultimately the sheriff considered that a custodial sentence was the only appropriate one and that he would be failing in his duty if he did not impose such a sentence in order to “reflect the need to bring home to anyone who might be so minded that this sort of conduct and incitement of others to violence will not be tolerated in a civilised society”. 

[12]      It is important to note that the sentencing exercise being carried out by the sheriff was one which involved an offence of public disorder, namely breach of the peace, in which, although the potential for incitement to violence was present, intention to incite actual violence was not something which required to be proved.  It is also of some importance to note, in relation to the appropriateness of a deterrent sentence, that it took almost a year before a prosecution was initiated and a further year and a half before the matter came to trial.  The proceedings at the point of sentencing were some two and a half years distant from any event, the repetition of which required to be deterred.

[13]      The appellant had the advantage of the statutory protection from imprisonment in respect of first offenders (Criminal Procedure (Scotland) Act 1995, s 204(2)).  No such sentence should be imposed unless no other method of dealing with him was appropriate.  This offender comes from a stable family background and is in steady employment.  He would be likely to lose his job in the event of a custodial disposal.  The offence itself, whilst significant, involved the issue of words which, whilst calculated to incite certain actions, were not necessarily intended to do so.  In these circumstances, and particularly having regard to the time during which this matter has been hanging over the appellant, the court does not consider that a custodial sentence was the only appropriate one.  It bears in mind also that the appellant has already spent some 20 days in custody.  The court will quash the sentence of imprisonment and substitute therefor a fine of £500.