Case Law

The most likely charge for blockading Faslane is Breach of the Peace1. This is a Common Law offence, which means it's not in any Act of Parliament but instead is defined by previous court judgments. While these judgments go back hundreds of years, there have been several recently which are the "leading judgments", that is, the modern definition. They all involve activists accused of blockading - the main two both involve actions at Faslane!

Note that the comments below on the cases are from activists with some experience of the Scottish legal system, especially in relation to blockading Faslane, but are not from lawyers.

Smith v Donnelly

This judgment is from 2001. It was a pre-trial legal appeal from a Faslane case, taken on the basis that the definition of Breach of the Peace in Scots Law was so broad and vague that it couldn't comply with the European Convention on Human Rights. While this appeal was technically rejected, in doing so the High Court narrowed the definition somewhat. This is in many ways the defining case for Breach of the Peace these days - although the judgment in Jones v Carnegie would take precedence over this, Smith v Donnelly is a much fuller, more detailed description of Breach of the Peace.

Smith v Donnelly says that what is required to constitute the crime is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. They said that something substantially greater than mere irritation is involved and that what is required is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person. At first glance, we clearly should be acquitted on this basis, but Helensburgh District Court, at least, will usually convict none the less.

The court did say, in Smith v Donnelly, that it wasn't essential that there was evidence that anyone was actually alarmed, but that if there wasn't such evidence then the conduct must have been flagrant and goes on to say that 'Flagrant' is a strong word and the use of that word points to a standard of conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances.

The full judgment is available here.

Jones v Carnegie

This was a case where five separate appeals, from a range of cases, were combined and heard in front of a panel of five High Court Judges (instead of the usual three2) in order to review the law on Breach of the Peace.

Two of the five cases involved blockades of Faslane and Coulport while a third was of an anti-nuclear activist who had interrupted the Scottish Parliament. The other two cases were unrelated.

Despite the fact that this was meant to be a review of the law on Breach of the Peace, the Court in fact did little more than look at each of the five cases separately and pronounce of whether their appeals should be upheld or dismissed. In many ways it is a much less comprehensive review than Smith v Donnelly was and primarily seems to reinforce the judgment from that case.

However, each of the three appeals by anti-nuclear activists was dismissed and there are some relevant comments in there to certain lines of defence.

The full judgment can be found here.

Dyer v Brady

This was an appeal by the Crown against the acquittal of a number of people for blockading a military supply company in Glasgow during the G8. They were acquitted on a No Case to Answer submission on the basis that their conduct had not been sufficiently "Flagrant". The appeal was dismissed (i.e. the acquittal was upheld).

The judgment in this appeal was only given on 6 October 2006 so it is too early to tell what, if any, effect this will have in Helensburgh District Court.

The full judgment can be found here.