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No breach of peace in man's behaviour wearing bra in own home: appeal court

13 September 2017

A man who could be seen from outside his home, wearing a bra inside the flat and behaving in a way that witnesses found "strange" or that made them feel "uneasy", had not committed a breach of the peace, the Criminal Appeal Court has ruled.

Lord Justice General Carloway, Lord Drummond Young and Lord Turnbull allowed an appeal by David Wotherspoon from a decision of the Sheriff Appeal Court, which had upheld the appellant's conviction at Glasgow Sheriff Court on a charge that on various ocasions in his house in Rutherglen he did "conduct yourself in a disorderly manner, stand in your house in full view of the lieges whilst wearing female underclothing, rub your nipples, place the lieges in a state of fear and alarm and commit a breach of the peace”.

Witnesses had stated that they had seen the appellant, either when passing the door of his ground floor flat or through his window, standing bare chested apart from a white bra. A man said he felt "uneasy" and "concerned", as children were resident and played in or near the building; one young woman found the conduct "strange" and another described it as "weird" and had phoned her mother about it.

The sheriff considered he was unable to view the appellant’s actions as “anything other than deliberately provocative”, and conduct which was “genuinely alarming and disturbing to a reasonable member of the public”. The Sheriff Appeal Court held that the appellant's repeated "parading" in this way "places this conduct beyond simply relaxing at home and beyond that which was merely annoying or uncomfortable".

Lord Carloway, who delivered the opinion of the court, said that neither had properly applied the test in Smith v Donnelly (2002). "That test was framed so as to enable the crime of breach of the peace to be formulated with sufficient certainty to meet the requirements of the European Convention on Human Rights", he observed. "Consequently it is very important that the precise language is followed when applying the test. The conduct requires to be genuinely alarming and disturbing to any, that is to say not just to one, some or even many, reasonable persons, and the potential disturbance has to be classified as serious."

He concluded: "The appellant’s conduct may have been exhibitionist, provocative and even perverse. None of these descriptions render it criminal. Although the wearing of clothing more suited to a different gender has been held to constitute a breach of the peace in certain circumstances (Stewart v Lockhart 1990 SCCR 390), the court is unable to hold that a man wearing a bra in his own home amounts to conduct which is either genuinely alarming to any reasonable person, although it may be to some, or that it threatens serious disturbance to the community. It may, as the witnesses said, cause concern or be regarded as weird or strange, and be classified, as the sheriff described it, as provocative, exhibitionist or even perverse, but that is some distance from conduct meeting the Smith v Donnelly criteria. The appeal is therefore allowed."

The court also criticised the way in which the case had been stated by the sheriff, as there were inconsistencies between the findings in fact, the evidence that appeared to have been accepted and the facts as narrated in the sheriff's note. Further, the questions posed did not reflect the matters sought to be brought under review, which had led to some confusion in the Sheriff Appeal Court.

Click here to view the opinion of the court.

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