Today’s Scotsman has, as its front page story, a report of a taxi driver acquitted of breach of the peace for allegedly racist remarks. Apparently John Young, 71, had been reported to the police by his (white) passengers who were angry at his use of the work “P***s” (as the Scotsman reports it) rather than “Asians”. (He also seems to have blamed members of that ethnic group for others being unable to get places at certain schools, but it seems to have been his choice of language rather than his claim which offended his passengers.)
I have already written a commentary on the case for the Scotsman (available here after the main story) and won’t repeat what is said there. The Scotsman has referred in its report to the earlier trial of Stuart Kennedy (see earlier post), suggesting that this latest case “adds to claims prosecutors are wasting taxpayers’ money”. In fairness to Crown Office, while the proximity of these two cases must be embarrassing, it has to be said that they represent only the most miniscule proportion of the many tens of thousands of cases prosecuted every year.
Nevertheless, objectionable as Mr Young’s alleged language may have been, it is difficult to see how it could have been said to amount in law to a breach of the peace (“conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community”, as the court put it in Smith v Donnelly 2002 JC 65 at para 17).
In his commentary to the recent case of HM Advocate v Murray 2007 SCCR 271 (Sh Ct), where a sheriff threw out a charge of breach of the peace against a man who told social workers that he intended to assault and murder a child, Sir Gerald Gordon remarks (at 282) that “[t]he charge is somewhat of a throwback to the earlier view that if something happens which causes concern or should not have happened, it must be a crime, and if one cannot think of any other crime which suits the situation it must have been a breach of the peace.” Those remarks apply with even greater force here.
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Earlier this year, as a private individual, I tried to challenge Lothian and Borders Police over a poster they had produced that contained the statement "Racists will be prosecuted." I said the statement was misleading, as it implied that all that is racist is illegal, which is not so. I was invited to speak to a senior officer in Fettes Avenue. He was patient and pleasant, but bewildered by my point. He asked me why I was doing this. I replied that a public body ought not to be making a public statement that is untrue, as it encourages confused thinking. He asked me to give him an example of something that is racist but not illegal. I cited the example of a racist statement made non-provocatively. He told me that if there was a complaint about such a statement, it would be treated as a breach of the peace. I expressed surprise. He explained to me the context of the poster: it was for display in parts of Edinburgh by ethnic minority shopkeepers who had received racist threats. I made it clear that I approved of the purpose of the posters. I also felt that I had made my point to the greatest extent that I reasonably could, and I did not take the matter further.
I am interested to see James Chalmers make exactly the point I made, with an authority that I lacked.
There is a tendency among those who administer the law to bend their understanding of the law in the direction of what they see as socially desirable. I have come across this in many contexts.
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