Scottish High Court of Justiciary Decisons

LORD JUSTICE-CLERK (Thomson).—In this case the appellant was found guilty of a charge that about 11.50 P.M. on 29th September last he conducted himself in a disorderly manner by peering in at a lighted window of a dwelling-house; put residents in the street of that dwelling-house in a state of fear and alarm and did commit a breach of the peace.

Mr Thomson has argued to us with his usual persuasiveness that there were no sufficient facts found to justify the conclusion reached. Mr Thomson says that the facts as found are no more than that the accused walked down the street and stopped on a public pavement and stared through a chink of some curtains into the room of a dwelling-house in which there was a light and that he did so on two occasions. Mr Thomson says that there was no evidence that anybody was alarmed or disturbed. None of the three women who gave evidence said that they were upset. There was no evidence as to what was going on in the house into which the appellant looked, and Mr Thomson says that was really no evidence at all that there was anybody alarmed or that anything took place that might be reasonably expected to alarm anybody.

It is usual to charge this offence as a breach of the peace, because it is a species of disorderly conduct; where something is done in breach of public order or decorum which might reasonably be expected to lead to the lieges being alarmed or upset or tempted to make reprisals at their own hand, the circumstances are such as to amount to breach of the peace.

It seems to me in the present case there are sufficient facts to entitle a judge to draw the inference of disorderly conduct in that sense. It was argued that the earlier findings related to an earlier date, but the fact remains that on the very night when the offence took place this Mrs Price was keeping watch and she had been so upset about the matter that she informed the police, but she was afraid to inform her own husband as to the situation in case he would through distaste be tempted into a breach of the peace. All that, taken in conjunction with other facts found, in particular with the fact that the accused returned to this particular window and again looked into this window, seems to me thoroughly to warrant the conclusion which was reached.

Accordingly, in the circumstances, I suggest to your Lordships that the question be answered in the affirmative.

LORD MACKAY .—It is a rather curious circumstance that our leading textbook on criminal law seems to contain no express reference to circumstances of a sexual sort which are usually well recognised and well known under the guise and the name of "Peeping Tom" activities. It may also be rather commented on that the whole doctrine of breach of the peace—a very wide term that, breach of the King's peace—is shortened down to one and a half pages of print in the latest edition of Macdonald on Crime, and that within these one and a half pages there is no reference to this particular form of objectionable activity. But in spite of that, I am satisfied, with your Lordship, that this class of thing to the annoyance of the modesty of women, if persevered in, has always been from time immemorial treated both in England and here as a police offence of which the not too appropriate name, perhaps, is breach of the peace. Possibly the other word used in the charge "disorderly conduct" is more near it, and might be preferably chosen. However, as I have said, it has always been so considered and so tried. We therefore on the general proposition on which Mr Thomson occupied us so interestingly and for so long would, should we accede to this submission that the type of thing does not fall into the heading "riot and breach of the peace" at all, be creating a precedent that would destroy a long course of practice.

Now, as regards Macdonald at p. 137, I wish to point out this, that, while a great number of very varied circumstances are brought under breach of the peace, the generalised proposition on the whole matter is really this sentence which I quote:

"It is obvious that many acts may or may not be breaches of the peace, according to the way in which they are done, the surrounding circumstances, and the particular occasion and place."

Now, an act of peeping in through a slit in the curtains which allows the vision to penetrate into a lighted room with the hope of seeing what female modesty will properly desire to be unobserved by the public ("decorum" ) is just one of these "circumstances" of which that can rightly be said.

Now, let me with your Lordship look on the circumstances here which would make it highly inequitable that the accused should escape on the lesser ground that the necessary conditions of the offence are ill-proved. In the first place, the time is significant, 11.50P.M.; a time when it may be many women are making for bed or already in bed. The length of time; first of all the character in which he looked on two several occasions is said to have been noticed by these women who were separately observing him at this window; not simply, it is held, giving a casual glance but "peering" in on each occasion; as to time, that he did so on both occasions for two or three minutes. Is there any innocent interpretation of a repeated act of peering in at a slit in a window for two or three minutes? I think personally there is none. In the third place, the accused returned to his action; he finished his first three minutes and then went away, and after walking a certain distance turned back and had recourse to the same opportunity afforded by the accidental slit, by peering, again for three minutes. Personally I thought Mr Thomson found it extremely difficult to put any construction whatever on these series of acts which if not highly sexual are certainly immodest, and calculated to annoy all, or at least some, modest women.

Then we were next invited to consider a number of definitions of breach of the peace. For my part I am content with those laid down in the chief authority canvassed, to wit, the case of Ferguson v. Carnochan, and there several Judges define in interesting way a breach which, however, is not this particular one. Yet Lord M'Laren's careful dictum was seized upon. His Lordship says that the essence of breach of the peace is that there should be "a breach of public order and decorum." Mr Thomson admitted frankly that, although the printed words say "public order and decorum," this dictum must be read as "order or decorum." It seems plainly so to me, and I think we have to do with "public." The phrase runs on, however, thus:—

"accompanied always by the qualification that it is to the alarm and annoyance of the public."

Mr Thomson then said, and this was his last proposition, that it was essential that the witnesses adduced should say that they personally were alarmed or that they were annoyed. I do not think the definition allows that. If acts are repeated and are calculated to cause alarm and annoyance and are indecorous, I think that is enough.

Now it is perfectly clear that at 11.50 P.M. on this particular occasion one of the women in the street had summoned the police to the district, just because of her apprehensions and particularly of what her husband might do to this man; she and others moreover had taken up their station to observe what might happen, if a man came along. Two of these women who were upstairs, and therefore not directly subject themselves to invigilation of this sort, on observing what did take place on the other side of the street came down forthwith to the first floor in apprehension lest their friend there, who was one of the witnesses, might have been unduly upset at seeing the acts going on over the way. She was, it is said, an invalid, and this is the very lady who summoned the police. These facts, in my opinion, are enough to establish that, if allowed to go on, this activity in this street would undoubtedly cause fear and alarm in the female population of that street, and in my opinion, that is enough and amply enough. In this case the police might perhaps have waited longer and have got more frequent instances of what he did, but I am of opinion that what with the facts as I have restated them and the dual repetition on the same night by the return to the same window for a material length of time, the police had enough for them to bring a prosecution; and after all, the police judge held that the breach had been committed, and I for my part am quite unable to say that he held that view without appropriate material for it.

LORD JAMIESON .—I concur with the opinion of your Lordship in the chair.