Secret Scotland

If it's secret, and in Scotland…

Disturbing fine issued in Edinburgh court

There are a number of disturbing and worrying issues raised by a case which recently took place in Edinburgh Sheriff Court.

Sheriff Kenneth Hogg fined Sebastian Przygodzki £100 for taking a photograph of a woman outside an Edinburgh bar at the Omni Centre. Rebecca Smith, who had been drinking with friends in the bar in the city’s Greenside Place about 2330 BST on Friday 8 August, is said to have felt unwell and gone outside for some air, was upset at the taking of the photograph, and her friends called the police.

Before reading further, I have to emphasise that this post has no interest in any discussion relating to the moral rights or wrong of the taking of this photograph, but to the subsequent application of the law, and resultant fine.

I, and many of us that run web sites, tend to run around equipped with a camera, either to capture specific subjects, or on the basis that if something, anything, happens then we’re ready to catch it.

The law tells us that provided we’re in a public place, then we’re free to photograph anything that we can see. If we’re standing on private land, then we need the permission of the landowner. Other than that, unless we start to stray into restrictions such as military and protected places, then we can generally click away as we please. I’m ignoring the minefield of modelling and release forms etc, as it seldom applies.

It’s also worth noting the following:

Breach of the peace A breach of the peace is an offence relating to a disturbance caused when a person or their property is threatened with harm or harmed in their presence. It can also relate to an individual’s fear of being harmed by an assault or other form of disturbance. A magistrate in England and Wales can only force an individual to keep the peace, but in Scotland a breach of the peace is an arrestable offence.

(Originally sourced from the BBC’s former crime glossary pages).

I thought I’d dig out something a bit closer to home, and this is from the web site of Levy & McRae, solicitors based in Glasgow:

Breach of the Peace

Primary Definition

The primary definition of breach of the peace was laid down in the late nineteenth century in Ferguson v Carnochan. Although this decision is less commonly referred to by modern courts than was formerly the case, the more recent definitions, which now enjoy considerable popularity, are predicated upon it.

‘Breach of the peace consists in such acts as will reasonably produce alarm in the minds of the lieges; not necessarily alarm in the sense of personal fear …’.

The words ‘to the alarm of the lieges’ in a charge of breach of the peace mean that what is alleged was likely to alarm ordinary people, and if continued might cause serious disturbance to the community’.

The Present Position

Today there must be some form of human conduct; but there is no limit to the precise form which it must take. Conduct which can be described as disorderly, or as a breach of public order or decorum, will certainly be sufficient; but such conduct is not necessary. Of equal importance is the effect which the conduct has or is likely to have. It is again not necessary (but sufficient) that what the accused does should actually cause a significant disturbance of the peace of a ‘neighbourhood’, or ‘mischief’ to the accused himself or to other people (by way of reprisal or otherwise). Further, it is not necessary (but sufficient) that the accused’s conduct should actually cause alarm to other people that their own safety will be compromised, or that such disturbance or mischief as stated above will probably follow if the accused is permitted to continue so conducting himself; but where such alarm is proved, it will be tested by considering whether it was reasonable for alarm to be registered in the circumstances. If there is no proof of such disturbance, mischief or alarm in fact, it is still possible to convict, provided that the accused’s conduct is thought reasonably likely to have caused one of those three things if it had been allowed to continue.

It will be appreciated that the offence is very wide. Neither the nature of the required conduct nor its effect (in fact or on the minds of others) is defined with any great precision.

Prepared by Peter Watson

Taking the report at face value, Mr Przygodzki had spent the day in Edinburgh, and had been taking photographs during the Edinburgh Festival, which was underway at the time. As we know from the report, he came across the scene at the Omni Cente, and took a photograph.

We have to assume that other than pointing his camera and taking the photograph, he did nothing to provoke incident.

It’s difficult to see quite how his actions fall within “A breach of the peace is an offence relating to a disturbance caused when a person or their property is threatened with harm or harmed in their presence. It can also relate to an individual’s fear of being harmed by an assault or other form of disturbance.”

Nonetheless, Rebecca Smith’s friends were able to call the police to the scene and have Mr Przygodzki arrested and charged.

In court, Sheriff Kenneth Hogg said the matter “could be best described as exceptionally unchivalrous. The lady concerned was entitled to her privacy and not to have a passing stranger take a photograph. I’m going to impose a fine to remind him chivalry is not dead and when somebody is in distress you leave them to it.”

Quite simply, this decision stinks to high heaven, and smacks of two abuses of power, and also of being sexist, with the Sheriff’s language suggesting the ruling would have differed if the subject had been male, and possibly even if the photographer had not (been male). So, there may even be sex discrimination issues to be explored here. We could explore this issue of motivation further, as there has recently been media coverage of anti-Polish sentiment growing in Scotland as Polish workers supposedly take “local” jobs, and wonder if this ludicrous fine is in some way related to Mr Przygodzki’s nationality and relatively recent arrival in this country. However, we’ll confine ourselves to the published facts, and perhaps let others explore alternative issues.

Firstly, Breach of the Peace is becoming a much-maligned catch-all offence used to prosecute individuals when there is no applicable law. A blind-eye is usually turned to this sort of abuse of the legal system, because most people are happy to see ti used to catch neds, yobs, vandals and the like that like to stick two fingers up at the law, and avoid committing specific offences.

Second, the Sheriff was able to impose the £100 fine (and presumably provide Mr Przygodzki with some sort of criminal record) without citing a specific offence, rather to remind him that “chivalry is not dead”. Does this mean there is a law regarding chivalry somewhere that we can break and be fined for as a result. Or that a Sheriff can make things up as they go along, and use them as the basis for imposing fines.

I assume Mr Przygodzki doesn’t have the resources to launch an appeal, or hold Sheriff Kenneth Hogg up for some sort of peer review, so this incident will pass with little comment, although it could be cited in future cases, so has implications for ordinary people with limited resources.

The Questions

What I would like to know is where does this case put the CCTV companies and TV companies that are making merry on the footage of of individuals who are seen making fools of themselves, and embarrassing themselves in public.

Many of these programmes now feature footage, often of scantily clad females in various stages of undress and distress, either unable to walk or even stand in some cases. In a number of cases, their decency is only maintained by the parts of the footage being obscured.

Do they all agree to having the footage shown? Not all the faces are obscured, and even those that are are sometimes hidden so poorly that any acquaintances would have little diffuculty identifying the person concerned.

Do the TV and CCTV companies have the freedom to show these pictures, even when supposedly “unidentifiable” as they please, when the subject may be upset by their use.

Are the courts unwilling to tackle these bodies, because unlike an indvidual taking a photograph (which it should be noted was only taken, and not displayed in public), they have the legal and finacial resources to fight back?

Whatever the reasons, this case is a warning to photographers, as the bottom line seem to be that you can end up with a fine, and maybe even a criminal record, without actually brealing a law, if you just upset someone.

I’m usually happy to support the law, even if it’s silly law, but in this case, something’s wrong. The system should depend on the establishment of a statute, if that exists  and you break it, you pay the relevant tariff. If it doesn’t exist, then you can’t break it, and there’s no tariff to be paid.

It shouldn’t be possible for a court to impose a fine for no reason other than being upset by something it doesn’t like.

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October 3, 2008 - Posted by | Civilian | , , , , ,

17 Comments »

  1. Hello, I’ma member of a group dedicated to collecting images of the public space…

    I would like to unleash an international army of intelligent resources on this event; i just need to reflect on how… but like i said in my group… i’m not interested personally in collecting these images, but i am interested in gross abuse of public authority… this is just that.

    please let me know if there is a way to get the ball rolling on this..

    -John

    ..

    Like

    Comment by John | October 3, 2008

  2. Hi John, nice site and group – pity about what it took to bring it to my notice.

    Afraid I’m just a reporter, with a bit of comment thrown in if I’m riled enough, so I can’t make any useful suggestions.

    As noted elsewhere, the chap concerned should fire his lawyer, should have appealed, and shouldn’t have pleaded guilty. Although, as a Polish immigrant here for only two years, I suspect he was intimidated.

    If anything legitimate does transpire, please drop a note here, and I’ll blog it up front, as this is something that could affect me personally one day, and has affected my friends in the past, with those who took offence able to use the police to intimidate them, although there was nothing the police could actually take action with. The police are generally not the problem, they are obliged to respond to charges made – the problem is those who try to twist the situation to suit their own ends.

    Good Luck.

    Like

    Comment by Apollo | October 3, 2008

  3. Apparently the guy pleaded guilty. (Plead guilty?) Having only been in the UK for two years he presumably wasn’t aware that this was a gross mis-use of the law which should never have made it to court. And he obviously had a crap lawyer. (Note to self: never retain the services of ‘Andy Houston’)

    This should definitely never have made it to court though. It’s ridiculous. The sherriff also said that the fact that the ‘victim’ was female made it worse, so if Sebastian had taken a photo of a drunk guy he would presumably have got off with a lesser fine.

    I’m sorely tempted to grab my camera, head out tonight, and take as many photos of people lying in pools of their own vomit as I can. With a bit of luck I’ll be arrested, only I sure as hell won’t be pleading guilty…

    Like

    Comment by Craig | October 3, 2008

  4. Beat me to the punch. I started writing my last comment before yours came up, Apollo.

    I’m not sure that your definition of ‘Breach of the peace’ is the one commonly accepted. I’ve been Googling around and the following is fairly typical (from scotland.gov.uk):

    “Common Law Breach of the Peace

    10. At present behaviour in Scotland which might be described as harassment or stalking is usually prosecuted as a breach of the peace. This common law offence covers all behaviour (including single incidents) which causes, or is likely to cause, fear, alarm, upset or annoyance. The Courts recognise that breach of the peace can be serious. In 1997, 1,378 people received custodial sentences for that offence. Since the start of 1998 incidents of breach of the peace involving harassment have been recorded explicitly by the police but it is too soon to analyse the effect of this new development.”

    It seems that the law is in serious need of an overhaul. “All behaviour which causes…annoyance.”?! Market researchers cause me annoyance when they stop me on the street and pester me into telling them what I think about certain brands. If only I’d known before that I could just get them arrested!

    Like

    Comment by Craig | October 3, 2008

  5. Thanks for the update, that particular definition was in relation to Stalking and Harassment Consultation at http://www.scotland.gov.uk/consultations/sah-03.asp so I’ve added a more general and current definition from a Glasgow solicitor’s web site to the entry above.

    I also think it’s important to note the difference in BOP as seen by English and Scots Law, since this is a Scottish case.

    Your point about the market researchers (and any other street pests) is actually quite interesting, since they actually accost and try to stop you.

    The photographer simply looks in you direction and presses a button, and can do so from some considerable distance. If not armed, and pointing a camera rather than a gun, it’s hard to see what alarm, or even annoyance if being reasonable, they can cause.

    Like

    Comment by Apollo | October 3, 2008

  6. It’s a disturbing precedent to be sure; but I can’t help thinking that it may be a one-off incident (too optimistic?). After all, lack of chivalry _isn’t_ something that is generally prosecuted…

    Like

    Comment by chrisdonia | October 4, 2008

  7. […] coverage on FARK, Secret Scotland, Edinburghers […]

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    Pingback by Is it a crime to take a photo of a drunk? « Amused Cynicism | October 4, 2008

  8. I raised this over here to explore some local public opinion.. some interesting comments, but i thought there would be more concern really…

    I have a family and loads of things that i should be doing today, but i must admit i feel very compelled to explore how you invoke a peer review on a judge.. i think i’ll make some phone calls today to some of my friends in the legal sector….

    I will be very surprised if some of the photography magazines don’t pick this up as they’ve been on a crusade to help people understand photographer rights, of which this is a breach..

    If togs could get fined for every instance they collected an embarrassing image of a celeb, that celeb would have the financial power to get protection from this chivalry precedent.. if it existed…

    Again, i’m not agreeing with the morality of the event, as i don’t agree with it, but this is a very slippery slope in that the message that the foot soldiers will collect from this is that if they don’t like the situation, they can at least detain, but now even fine…

    iI can’t help but think that the judge might be one of the many people you can bump into in Edinburgh that have negative things to say about the strong work force that has come over here from Poland. The kind of people that feel the need to describing how they displace jobs, maybe jobs of people this judge knows… i feel comfortable saying this since his message was anything but clinical and almost certainly medieval in quoting chivalry as the breach.

    ..

    Like

    Comment by John | October 4, 2008

  9. I don’t think the issue has been given nation-wide coverage, so few people will be aware unless they pick it up by looking at BBC Scotland’s coverage, or are reading in blogs.

    I’m interested in your point on the Polish aspect, and I already picked up on the so-called chivalry aspect, and went back and added a note that the good Sheriff Kenneth Hogg may be guilty of making a sexist ruling. I think I’ll go back and add a comment that the ruling may be racially motivated as well.

    If you have a search in for Polish in this blog, you’ll see I came under fire for this, for merely reporting material and events that the commentators deemed racist on my part. This would be rather odd, since I happen to be of Polish blood (no, not a recent import), and am blind to race, sex or whatever, and blog on issues.

    I sincerely hope more people take notice of this and interest can spread because, as you are probably aware, the police and authorities (and I just mean Jobsworths with a company uniform) are now taking to attacking anyone with a camera in public, and judging them a paedophiles and perverts if they are seen pointing a camera at a school or a corporate structure that the owners doesn’t want photographed. The sad thing is that the police are ignorant (I really don’t blame them – they are called to the various scenes) and just are not trained or aware of what can and can’t be done, and so the old Breach of the Peace catch-all is pulled out of the hat as they err on the safe side.

    Sad, isn’t it?

    Like

    Comment by Apollo | October 4, 2008

  10. As there are journalists present in the discussion, I have a suggestion:

    Why not help the guy out by buying his photo for 100 pounds and publish it for editorial purposes to start a public discussion in the media about the case and its implications on personal rights and misuse of law enforcement and and the legal system.

    This could perhaps lead to a review of the verdict and corrective action in the local system. It would further serve as a reminder on a broader scale for the need of appropriate jurisprudence.

    Like

    Comment by Kaj | October 4, 2008

  11. […] Secret Scotland looks at the story of Sebastian Przygodzki who has been fined £100 for taking a photograph of a drunk woman in a public street. What gets me about the story is the fact that the Sheriff seemingly handed out the fine not because Mr Przygodzki broke the law, but because he wanted to teach a lesson in chivalry. Cabalamat has more on this. […]

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    Pingback by Mandelson, the VP debate and lots of ideas from the SNP - Scottish Roundup | October 5, 2008

  12. Fistly, the guy sadly plead guilty. If you plead guilty to this charge in Scotland you are condered guilty and will be dealt with as the sherrif sees fit.

    Secondly, Ive read elsewhere that there was suggestion a “sexual nature” to the incident. Reading between the lines I can only presume that it was more of an open blouse or up-skirt shot which would bring his behaviour clearly into the realms of breach of the peace.

    I suspect this is true otherwise any competent Scottish solicitor would have advised him to plead not guilty.

    If it is not true and the guy was just photographing drunks then something is wrong with policing and the legal system in this area. I think there is anyway but this would just prove it!

    I hope its a one off.

    Like

    Comment by Mark Gordon | January 13, 2009

  13. The sherrifs comments after the guilty pronouncement are his opinion and not the law’s. They are irrelevant and IMHO only serve to bring the judiciary in to disrepute – my local sherrifs are regularly coming out with this kind of irrelevant nonsense.

    Like

    Comment by Mark Gordon | January 13, 2009

  14. […] taking a pic is becoming a legal issue Back in October (2008), we highlighted the worrying decision by an Edinburgh Sheriff to fine an individual who took a photograph of a woman who had been drinking in an Edinburgh bar, […]

    Like

    Pingback by Just taking a pic is becoming a legal issue « Secret Scotland | February 6, 2009

  15. […] ludicrous situation where people can be fined and even jailed for taking photographs in public (see Disturbing fine issued in Edinburgh court and Your next photograph could be a crime ), it seems that the practice of killing an animal in […]

    Like

    Pingback by Judges are losing touch with reality « Secret Scotland | February 22, 2009

  16. […] Secret Scotland […]

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    Pingback by “Man fined for taking photograph” « Duncan’s blog | April 19, 2009


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