Breach of the peace: privacy and psychologists

Macdonald v HM Advocate [2008] HCJAC 5 is a rather peculiar opinion on breach of the peace issued in October of last year but only uploaded to the Scotcourts website yesterday. (Thanks to Gerald Gordon for altering me to the case.) Publication would seem to have been postponed because of an order under section 4(2) of the Contempt of Court Act 1981: the relevant page of the Scotcourts website indicates that one was issued the day before the date of the opinion.

The opinions are very brief and do not set out the terms of the indictment, but a Press and Journal report indicates that Mr Macdonald was alleged to have, when interviewed by two psychologists, said that he was a dangerous predator and intended to commit a sexually violent crime involving a child victim on his release from prison. The report implies that the breach of the peace charges were resorted to because of fears as to how Mr Macdonald might act on his release from a prison sentence.

By a majority, the appeal court held that the charges against Mr Macdonald were irrelevant. Lord Johnston (with whom Lord Clarke concurs) says:

“The material point is the context in which these answers were given. Whether or not, at least one of the two ladies was alarmed by the content of the answers, does not seem to us to be the material point. What seems to us to be much more important is that, and we decide this case purely on that question, that the context of the interview does not lend itself to the definitions of breach of the peace to be found in longstanding cases and rehearsed in two recent cases of Smith and Jones [Smith v Donnelly 2002 JC 65 and Jones v Carnegie 2004 JC 136] with regard to public concern.”

But what exactly does this mean? Just as it is “not the law… that a police officer is not to be regarded as a person liable to be affected by disorderly conduct” (Saltman v Allan 1988 SCCR 640, per the Lord Justice-General (Emslie)), surely it cannot be the case that it is impossible to commit a breach of the peace in this context? That seems to be the view taken by Lord Marnoch, whose dissenting opinion reads (in its entirety) as follows:

“In common with Lord Bracadale [the judge at first instance], I, for my part, would regard the arguments regarding the contextual aspect of this case as being ultimately for the jury to consider. At the same time, I do think that there are real questions arising from the fact that this offence was allegedly committed in private, and it may well be that the case of Young v Heatly 1959 JC 66, to which we referred by the Crown, will one day have to be formally reviewed by a larger court. There is nothing further I wish to say on the matter.”

It may be that a distinction can be drawn between Young v Heatly and the present case. In Young, a depute headmaster made indecent remarks and asked sexual questions to pupils in his room. A guilty verdict there might be rationalised on the basis that the remarks were substantively directed at the pupils (with all the consequences that entails in terms of alarm and fear for personal safety) in a way in which Mr Macdonald’s alleged remarks were not directed at his interviewers.

It is, of course, difficult to fully evaluate the decision without the actual terms of the indictment, which will hopefully be reported in due course. The case bears a striking similarity to HM Advocate v Murray 2007 SCCR 271 (Sh Ct) (noted at this earlier post), but there the charge was thrown out because it disclosed a prior conviction: the issue of relevancy was not discussed.

(Incidentally, the Press and Journal report mentioned earlier also includes, for no obvious reason, an attack on parole and early release from the Conservative justice spokesman, Bill Aitken and a statement by a spokesperson committing the Government to ending “automatic, unconditional release”. Mr Macdonald was serving a six year sentence – automatic early release applies only to sentences of four years or less. His release was not unconditional because of a supervision period set by the trial judge, and there is no indication that he served anything less than his full sentence – indeed, parole would have been rather peculiar given the statements he was alleged to have made. Perhaps no newspaper article on criminal law would be complete without boilerplate political statements such as these, but they seem less than helpful to a reader trying to understand the case.)