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Appeal Against Conviction on the Grounds of ” The Wrong Test Being Applied”

HMA v David Wotherspoon

A man found guilty of committing a breach of the peace after he was seen by neighbours “parading around in a bra” and spotted “rubbing his nipples” by a passer-by of his Rutherglen home has successfully appealed against his conviction. The Appeal Court ruled that the wrong test was applied. It was further noted that the appellant’s conduct may have been “exhibitionist, provocative and even perverse” but it was not “criminal”. The charge libelled was that the accused, on various occasions, conducted himself in a “disorderly manner” by rubbing his nipples “in full view of the lieges whilst wearing female underwear”, placing the lieges in state of “fear and alarm”. The court was told that there was evidence that on four occasions where neighbours in the same block of flats saw the man “bare chested but wearing a bra”. The issue on appeal was whether the appellant’s behaviour amounted to a breach of the peace, in terms Smith v Donnelly 2002 JC 65. Witnesses spoke to feeling “uneasy” by the appellant’s weird conduct, but none said that they were “alarmed” or scared by the act.

The appellant submitted that while this behaviour could be described as “strange or embarrassing”, it was not so alarming that it could amount to a breach of the peace in line with the test set out in the case law. Allowing the appeal, the judges explained that the test of whether conduct constitutes a breach of the peace remains that conduct is “severe enough to cause alarm to ordinary people and threaten serious disturbance in the community”, which presents as “genuinely alarming and disturbing, in its context, to any reasonable person”. Therefore, the test in this case was not met.

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