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Smith v Donnelly 2001 SLT 1007

By SLAS Spokesperson

An interesting case before the High Court of Justiciary raising questions under Article 7 of the European Convention of Human Rights on legality and certainty. Article 7 provides that no one shall be held guilty of a criminal offence on account of any act or omission which does not constitute a criminal offence under national or international law at the time when it is committed.

In this case a person was charged with Breach of the Peace which consisted of lying on the road in front of a military base in a protest against nuclear weapons. It was argued on his behalf that the crime of Breach of the Peace had become so elastic over the years that it was meaningless and incompatible with Article7. This was raised as a devolution issue. This argument was rejected so the accused appealed. The High Court held that it was neither desirable nor possible to derive a comprehensive definition of Breach of the Peace from a close examination of the facts of individual cases and that breach of the peace required conduct which was sufficiently severe as to cause ordinary people to be alarmed and which threatened serious disturbance to the community. Causing "annoyance" or upsetting people should not be taken in isolation; the conduct must be "genuinely alarming and disturbing in its context to any reasonable person".

It was observed that police officers had a discretion to act or not to act in difficult situations and the fact that the accused, as a regular protester was sometimes subject to police action and sometimes not, could not be taken to reflect on the question of the definition of breach of the peace.

Opinion: that it would normally be proper, having regard to the Convention, not to rely on the statutory form of the charge, but to specify the conduct said to form the breach of the peace.


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