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.