Edward Montgomery Against The Procurator Fiscal, Kilmarnock

Applicant: I Paterson (Solicitor Advocate); Paterson Bell (for Allan Kerr, Kilmarnock)

[5] A no case to answer submission was made on the basis of insufficient evidence of identification on charge 2, even with the application of mutual corroboration, because that alleged offence was not similar in time, character and circumstances with those on charges 1 and 3. It was also submitted that the conduct in respect of charges 1 and 3 did not constitute a breach of the peace, because it was not severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community.

[11] The sheriff was entitled to conclude that there was a significant sexual aspect to charge 2, given what was said and the presence of the bedding in the van. No alternative explanation for what had been said was advanced.

[13] It is not enough that the conduct complained of did alarm and disturb someone, nor is it determinative that it did not ( Jones v Carnegie 2004 JC 136 , LJG (Cullen) delivering the opinion of the Court at para [13]). The test is an objective one, in the sense that the court must address the issue from the standpoint of the reasonable person observing or experiencing the conduct. It is clear that the conduct must involve some public element ( Harris v HM Advocate 2010 JC 245, LJG (Hamilton) delivering the Opinion of the Court at para [22]).

[17] Such similarities were undoubtedly present here. In each case the conduct occurred in the public street with the appellant driving a van. Each episode involved children, with the appellant either following or staring at them or both. It is true that the attempt to lure the complainer into his van is a point of difference. It is, however, only that. The sheriff was again correct in repelling the submission. Question 1 in the stated case falls to be answered in the affirmative, as does question 2 which was not argued.