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Ms Roseanna Cunningham (Perth and Kinross): I am a little concerned about the amendment, not because I disagree with the sentiments that have been expressed, but because I wonder whether it is absolutely necessary.

I want to make a few points about breach of the peace generally. At the moment, the definition of a breach of the peace is wide and flexible. People in Scotland can be charged for harassment and stalking under the category of a breach of the peace.

The hon. Member for Monklands, East (Mrs. Liddell) is right to say that there is a big problem with the general public's perception of the seriousness with which the matter is being dealt with. The difficulty is that a breach of the peace can, in theory, encompass serious as well as minor incidents. However, in practice, the approach has been to charge people who have committed minor

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incidents with a breach of the peace, so it is perceived as a minor offence. That is unfortunate, although it could be changed within the terms of existing law. It would require some discussion between those concerned, the Crown Office and the bench to avoid a breach of the peace being merely a bit of shouting and arguing on the street corner, which I suspect is what most people think of as a breach of the peace.

That matter was discussed in the Standing Committee considering the Crime and Punishment (Scotland) Bill. A new clause was discussed and subsequently withdrawn. I would have been slightly happier with that new clause, because it was more detailed, related directly to Scotland and was not simply tacked on in this fashion.

As the Minister may remember, in that debate in Committee, I expressed my reservation about a breach of the peace. I realise that I may have to repeat some of what I said in Committee. When an individual is convicted, the judge has before him or her a schedule of previous convictions. The judge will consider those convictions before coming to a view on an appropriate disposal--I suspect that that happens in most cases. The difficulty with a breach of the peace is that it only ever shows as that: there is no specification on the schedule that would alert the judge to conduct that may have begun to develop. That is one of the biggest drawbacks.

The Minister of State, Scottish Office (Lord James Douglas-Hamilton): I followed up that matter with the Lord Advocate. He has confirmed that it should be possible to include "harassment" in brackets after "breach of the peace" in the schedule of previous convictions. He is actively considering that possibility with a view to implementing it. I shall say more about that later. The hon. Lady's point has been acted on, and is being considered urgently.

Ms Cunningham: I am grateful to the Minister for that statement. That will help enormously. One of the difficulties with harassment is that it can be a number of apparently trivial incidents that together cause the problem. If that change were made to the existing practice and procedure, it would make a very big difference. It needs no change in the law to achieve that, but it will allow a judge to assess that crime more seriously. I look forward to hearing from the Minister when that change will take place. In view of his statement, I shall cut short my remarks.

Mr. Menzies Campbell (Fife, North-East): The motive behind the amendment is entirely proper. I do not consider it a wrecking amendment, and if that was said, it was a wholly misplaced comment. However, having spent a little time examining the history of the law of breach of the peace and the current law as presently stated in the most recent codification of the laws of Scotland, I have come reluctantly but firmly to the view that the amendment is misplaced.

When the hon. Member for Monklands, East (Mrs. Liddell) spoke about breach of the peace, she failed to understand the flexibility of the law in Scotland on common law crime, and the extent to which it has developed since its original 18th or early 19th-century formulation. The basis for the use of the crime of a breach of the peace is to allow sufficient flexibility to deal with a range of situations that have as their consequence the

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alarm or distress of a number of people or of an individual. I suspect that the problems that the hon. Lady outlined so eloquently are related not to the nature or state of the law, but to the willingness of the police or the procurator fiscal to take proceedings against individuals.

We should also bear in mind the fact that, if we create a such a crime, it will be established only by the use of corroborated evidence. The hon. Lady said that some people may have recourse to an interim interdict. There are good and understandable reasons for that. First, an interim interdict can be obtained before a judge literally at half an hour's notice.

Secondly, it can be obtained on the basis of ex parte statements--the legal representative appears on behalf of the pursuer. I am hopeful that we may at last educate some Conservative Members--the "pursuer" in Scotland is the term used for the person whom they call the "plaintiff". This is supposed to be the United Kingdom, but I am deeply disappointed that some of the Government's Back-Bench Members are not so immersed in the unity of the kingdom that they understand even the most basic terms used in Scottish law.

The representative of the pursuer, by stating a sufficiently forceful case, can obtain an interim interdict. Indeed, it can be obtained outwith the presence of the person against whom it is directed. Furthermore, any breach of an interdict--whether interim or permanent--is a contempt of court, and is capable of being dealt with by fine or imprisonment.

The Minister will recall that we changed the civil evidence rules in Scotland in 1990 when we removed the requirement for corroboration in civil cases. An interim interdict can be obtained on the basis of an ex parte statement at half an hour's notice and without the need for corroboration. It is not surprising that, faced with an urgent case, one adopts that route rather than attempting to invoke the use of the police and a prosecution, because that requires investigation, arrest, appearance in court, committal for trial and all the procedures that follow thereon. There is therefore something to be said for interim interdict.

In two cases--Montgomery v. McLeod 1977, with which I am sure the Minister is more than familiar, and Young v. Heatley 1959--the breadth of the application of the existing crime of breach of the peace is set out succinctly. The former states:

"There is no limit to the kind of conduct which may give rise to a charge of breach of the peace. All that is required is that there must be some conduct such as to excite the reasonable apprehension to which we have drawn attention, or such as to create disturbance and alarm to the lieges in fact".

The language is somewhat Victorian; a liege is simply a citizen.

According to the latter case:

"Breach of the peace, however, is an offence the limits of which have never been sharply defined. It is so largely in each case a question of circumstances and of degree".

In the course of my researches, I encountered a further case, which, unhappily, is not reported. I refer to Mackie v. McLeod 1961, with which the Minister may also be familiar. The circumstances are interesting. The accused person became infatuated with a young woman whom he hardly knew, and formed the habit of waiting outside her place of employment, looking at her and then following her and her fiance for some part of their time together.

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He was convicted of breach of the peace. An appeal was taken, on the grounds that the facts disclosed in the evidence did not justify the conviction, but the conviction was upheld by the High Court. That may not be the most extreme instance of stalking, but it seems to me to contain substantially the elements of stalking, and I consider it a clear indication that the law has been seen to be adequate to deal with the problem.

As for bail and the particular case to which the hon. Member for Monklands, East referred, it would have been open to the judge in granting bail--I am surprised that this did not happen--to make it a condition of bail that the person granted it did not go back to live next door to the alleged victim. If that condition had been applied and had then been breached, the individual could have been brought back to court, bail could have been revoked and he could have been kept on remand in prison until such time as it was appropriate to deal with his case.

What is significant is not the state of the law but the state of willingness of those responsible for the administration of the law--the police in the first instance, and the procurator fiscal service in the second. That lies at the heart of some of the difficulties outlined by the hon. Lady.

I fear that, if the amendment were passed, it might achieve the opposite of what is intended. At present, if charges are brought under the crime of breach of the peace, there is a degree of flexibility and discretion. Indeed, some argue that the degree of discretion is too great, but that is not an argument that we are considering today. If the crime of harassment is created in Scotland, there may well be cases in which the borderline is drawn in such a way that a person who would otherwise be convicted of breach of the peace will be acquitted of harassment.

Although the hon. Lady's motive is not to be challenged in any way, and despite her obvious concern and the time and trouble that she took in preparing her speech, she has not appreciated the precise nature of the crime of breach of the peace in Scottish law. If the amendment were accepted, it might actually make the conviction of those guilty of harassment more difficult than it is in Scotland.

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