Smith v Donnelly (Procurator Fiscal, Dumbarton)

Factual and Procedural Background

On 15 February 1999, the Appellant conducted a protest at the North Gate entrance to H.M. Naval Base, Clyde, District of Argyll and Bute, by lying down on the roadway, disrupting traffic, refusing to desist when requested, and thereby committing a breach of the peace. The case proceeded to an appeal before the High Court of Justiciary, where the Appellant challenged the charge on grounds related to its compatibility with the European Convention on Human Rights (ECHR), particularly regarding the clarity and retrospective application of the breach of the peace offence.

Legal Issues Presented

1. Whether the charge of breach of the peace is sufficiently clear and defined to comply with Article 7 of the European Convention on Human Rights, which prohibits retrospective criminal charges and requires legal certainty.
2. Whether the charge of breach of the peace is compatible with Article 10 of the European Convention on Human Rights concerning freedom of expression and assembly, considering the protest context.
3. Whether breach of the peace, as a common law offence in Scots law, is a retrospective charge in light of devolution and the Scotland Act aligning Scots law with the ECHR from 23 May 1999.

Arguments of the Parties

Appellant's Arguments

• The devolution and the Scotland Act require Scots law to align with the European Convention on Human Rights from 23 May 1999.
• The charge of breach of the peace is too vague and all-encompassing to meet the ECHR requirement of legal certainty, thus failing Article 7.
• The charge improperly criminalizes conduct without clearly defined limits of acceptable behaviour.

Respondent's Arguments

• Breach of the peace is a well-established common law offence in Scots law, existing for several hundred years, and is not a new or retrospective crime.
• The charge does not contravene Article 7 because it is not retrospective and is sufficiently defined through historical and judicial interpretation.
• The conduct alleged could disrupt national security and public safety, justifying the charge under Article 10(2) as a permissible restriction on freedom of expression and assembly.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kokkinakis v. Greece (1993) Series A No. 260-A	Principle that only law can define a crime and prescribe penalty (nullum crimen nulla poena sine lege); requirement of legal clarity and foreseeability under Article 7 ECHR.	The court applied the principle that breach of the peace must be sufficiently clear and foreseeable to the individual, allowing for judicial interpretation consistent with the essence of the offence.

Court's Reasoning and Analysis

The court reasoned that breach of the peace is a long-established common law offence in Scots law, not a new or retrospective crime, and thus does not violate Article 7 of the ECHR which prohibits retrospective criminal charges. The court emphasized that Article 7 requires crimes to be clearly defined and foreseeable, but allows for judicial interpretation that clarifies the law progressively, provided such interpretation remains consistent with the essence of the offence.

The court further considered the nature of the conduct alleged, noting that lying on the road to protest near a sensitive national security site could threaten public safety, freedom of movement, and national security interests. Consequently, restrictions on such conduct under breach of the peace were held permissible under Article 10(2) of the ECHR, which allows limitations on freedom of expression and assembly when necessary in a democratic society.

In defining breach of the peace, the court referenced its traditional Scottish formulation: acts likely to alarm the public (the "lieges") or disturb social peace, not necessarily requiring direct evidence of alarm but allowing inference from the nature of the conduct. The court underscored that breach of the peace includes disorderly conduct that could provoke violence or alarm the community, and that the charge is sufficiently precise to meet the Convention’s standards of lawfulness.

Holding and Implications

The court’s final decision was to DISPOSE OF the appeal, upholding the charge of breach of the peace against the Appellant.

This decision confirms that the charge of breach of the peace remains a valid and sufficiently defined offence under Scots law, compatible with the European Convention on Human Rights. The ruling implies that similar conduct disrupting public order, especially near sensitive sites, may lawfully be prosecuted under this offence. No new precedent was established beyond affirming the existing legal principles regarding breach of the peace and its compatibility with human rights standards.