Breach of the peace, privacy and psychologists:further details

I have now seen a copy of the indictment in HM Advocate v Macdonald [2008] HCJAC 5 (see earlier post). It contains two charges. The relevant part of the first is as follows:

“…you having been convicted on a charge of assault with intent to rape and having assaulted an 11 year old girl… and having been sentenced to 6 years imprisonment on 16 December 2006… did on 8 May 2006 at Her Majesty's Prison, Peterhead, conduct yourself in a disorderly manner and for the purpose of causing fear and alarm to [two complainers], did state to [them] that you were a dangerous predator and that you had not been rehabilitated, that you had fantasies of a sexually violent nature and that you intended to commit a sexually violent crime such that a life sentence would be the outcome, repeatedly stare at [the first named complainer] and you did place [both complainers] in a state of fear and alarm for themselves and for the lieges and you did commit a breach of the peace.”

The second is in broadly similar terms, but relates to different statements allegedly made by Mr Macdonald on a later date.

The terms of the indictment are similar to those in two earlier cases which did not proceed beyond the sheriff court, and they are worth comparing. In HM Advocate v Duguid 2005 SCCR 465 (Sh Ct), the accused was charged with having committed a breach of the peace in the following terms:

“…having been placed on the sex offenders register for life at the Sheriff Court, Perth, on 28 May 1998 for offences of lewd and libidinous practices against young children, did conduct yourself in a disorderly manner and knowing that there was likely to be a large number of children at a fireworks display there, dress yourself in such a manner as to be easily mistaken for a steward or first aid officer, position yourself adjacent to all the public facilities there, place a police officer who was in attendance at said event, to whom you are known and who was aware of the conviction aforesaid, in a state of fear and alarm for the safety of children and the public and did commit a breach of the peace.”

In that case, Sheriff Davidson held that the facts libelled were not sufficient to constitute a breach of the peace and reserved opinion on whether the reference to the previous conviction was competent.

In HM Advocate v Murray 2007 SCCR 271 (Sh Ct), the indictment libelled that the accused had previously been convicted of a serious assault on a young boy and that he had told social workers that he would assault and murder a child. There, Sheriff Vannet held that s101(2) of the Criminal Procedure (Scotland) Act 1995 only permitted a previous conviction to be led where it was an “essential fact in the proof of the substantive charge”, such as in respect of driving while disqualified.

Crown appeals in Duguid and Greig were abandoned. The three cases taken together seem to demonstrate that the point is of considerable practical importance, making the cursory treatment of the issues by the appeal court in Mr Macdonald’s case rather surprising.

The charge against Mr MacDonald is significantly different from these earlier cases, because the indictment libels that the complainers were placed in a state of fear and alarm for themselves (something which makes the relevance of Lord Marnoch's reference to Young v Heatly clear). Although there are obvious objections to breach of the peace providing a vehicle for detaining someone purely on the basis that it is feared they might commit a crime in the future, and that might form a basis for an argument that the words “and for the lieges” are irrelevant, their excision would not be fatal to the charges against Mr Macdonald.

If the psychologists were placed in a state of fear and alarm, then it is difficult to see how the charge could be irrelevant unless either (a) it is the law that a breach of the peace cannot be committed “in private” (or something similar) – not a proposition hitherto accepted by the courts – or (b) it is the law that reasonable psychologists are made of such stern stuff that they cannot be placed in a state of fear and alarm (or alternatively, that they consent to being placed in such a state as part of their job, and that such consent negates the alleged breach of the peace). That does not seem particularly plausible.

Perhaps there is some issue of public policy here. That seems to have been key to the argument made by counsel for Mr Macdonald, and as Sir Gerald Gordon notes in his commentary on Murray, "[t]he criminal law is not intended to inhibit probationers from telling their social workers about their fantasies and/or fears about what they may do”. That must be true, although as Lord Marnoch suggests in Macdonald, this may properly be a contextual matter for the jury. No doubt it should be very difficult to commit a breach of the peace when interviewed by a psychologist or social worker, but it should not be impossible.

The question which Sheriff Vannet decided against the Crown in Murray – whether references to a previous conviction were competent in support of such a charge – is not even touched upon, and so still awaits scrutiny by the appeal court.