The appeal court's view of male strippers and offensive weapons

There have, of course, been two very important and high-profile appeal court decisions handed down in recent days: Fraser v HM Advocate [2008] HCJAC 26 and Mitchell v HM Advocate [2008] HCJAC 28.

More of these on this blog shortly, once I have recovered sufficiently from exam marking to read the lengthy opinions properly. But first, more on the ongoing saga of Aberdeen stripper Stuart Kennedy (see, most recently, this post). Just over two weeks ago, the appeal court published its opinion in Frame v Kennedy [2008] HCJAC 25, dismissing the Crown’s appeal against Sheriff Stewart’s decision to uphold a no case to answer submission on Mr Kennedy’s behalf.

The appeal court rejects the advocate-depute’s submission that Mr Kennedy could not be said to have a “reasonable excuse” for carrying the batons. (An appeal against the sheriff’s decision to acquit Mr Kennedy in respect of a third charge, relating to a spray containing dye, was abandoned.)

Sheriff Nicholson, who sat as a temporary judge and delivered the court’s opinion, notes a tension in the advocate depute’s argument, which seemed to attach particular weight to Mr Kennedy’s admission that he carried the spray so that he might disorientate anyone who tried to attack him (“Drunk guys get very jealous of male strippers.”) As he says, that sits uneasily with the advocate depute’s argument that the sheriff had taken an irrelevant consideration into account in concluding that there was “no evidence at all which even hints at the suggestion that [Mr Kennedy] had any intention of causing harm and injury to other persons”.

But here, the court hints at a better argument. Sheriff Nicholson, sitting as a temporary judge, says (at para 22):

“It is not clear to us why the absence of any possibility of harm being caused to others should be regarded as irrelevant while at the same time the existence of such a possibility should be prayed in aid as negativing any contention that there was a reasonable excuse for having the weapons in question.”

Note that, in its own terms, this passage is concerned only with the “possibility of harm”. While I think that the appeal court’s decision is the right one, a better argument for allowing the appeal would, I think, run as follows:

It is irrelevant whether Mr Kennedy envisaged being attacked during the course of his act. Even if Mr Kennedy does not envisage using his batons for self-defence, male strippers are at risk of being attacked by jealous men (sidenote: is this within judicial knowledge?) He might therefore, in the heat of the moment, resort to his batons if attacked regardless of his prior good intentions. Furthermore, perhaps depending on how his act is conducted (is the utility belt removed?), then other persons – who may well be drunk – could acquire his batons and use them as offensive weapons. For these reasons, it is potentially harmful to public safety for Mr Kennedy to carry batons in public and the authenticity of his costume should not be regarded as a reasonable excuse.

The court said that it did “not consider that any distinction” could be drawn between Mr Kennedy’s case and that of Houghton v Chief Constable of Greater Manchester (1987) 84 Cr App R 319, where (applying equivalent English legislation) a former police officer who dressed for a fancy dress party in uniform and carried a truncheon was held to have a “reasonable excuse”. The distinction might be this: Mr Houghton was a former police officer, dressing up as a police officer for a fancy dress party on a one-off basis. It was therefore reasonable for him to use his old truncheon, which he had to hand. It was not, by contrast, reasonable for Mr Kennedy, who dresses up as a police officer regularly, but who never had any need for real police batons, to seek out and purchase the real thing rather than imitations.

That said, I doubt these arguments are convincing. And it seems the saga is not over yet. If at first, you don’t succeed, try breach of the peace instead…

According to various news reports, Mr Kennedy was arrested at Aberdeen over the weekend, dressed as a soldier, and now faces a breach of the peace charge. According to the Edinburgh issue of the Metro yesterday (p2), he states that the police:

“…didn’t tell me anything, they just bundled me into the back of the van and took me to the station. I did nothing wrong. But the arresting sergeant told me his hands were tied. He explained a chief superintendent had put a memo out to all officers instructing them to stop and question me whenever they saw me. To me, this is harassment from a high ranking police officer.”

The notion that a breach of the peace charge is committed in circumstances such as those described in the various press reports seems almost absurd. It remains to be seen whether any further proceedings will come of this.