A persistent beggar who alarmed elderly women in one of Glasgow's busiest streets was not committing a breach of the peace, three of Scotland's senior judges have ruled. They said begging itself was not a breach of the peace and whether it amounted to a crime would depend on how the begging operation was carried out.

In this case, although a magistrate had found it proved that James Donaldson had placed women in a state of fear and alarm, that was not enough to show that an offence had been committed.

Donaldson, 27, was jailed for three months by magistrate Josephine MacLean but yesterday his conviction was quashed at the Justiciary Appeal Court.

Donaldson, who has 22 previous convictions for offences including breach of the peace, housebreaking, and theft, was found guilty at Glasgow District Court of conducting himself in a disorderly manner, approaching various members of the public, asking them for money, placing them in a state of fear and alarm for their safety, and committing a breach of the peace.

Donaldson, of Duncombe View, Drumry, Clydebank, was also convicted of committing the offence while on bail.

The magistrate found it proved that on January 15 this year at 10.25 pm, two plainclothes policemen had observed Donaldson in the Byres Road area of Glasgow.

He was stopping passers-by and asking them for loose change, money for a cup of tea, spare coppers. He was not abusive and did not swear at anyone.

The magistrate said: ''Two elderly females approached by Mr Donaldson held their handbags closer to them and other females were giving him a wide berth. The females all seemed to be in a state of fear and alarm. On occasion, he would walk alongside persons he had approached.''

She concluded Donaldson was committing a breach of the peace by placing members of the public in a state of fear and alarm.

Donaldson appealed, arguing that on these findings the essential ingredients of the crime of breach of the peace had not been proved.

The essential element of the offence, which had to be assessed objectively, was that the conduct complained about must be likely to alarm or cause fear to the public.

While in this case the magistrate had found that some people were placed in a state of alarm, she had not done so by reference to the essential objective test.

The Crown opposed the appeal, arguing that the approaches made to different people in the street were part of a continuing course of conduct and the absence of physical contact did not preclude the conclusion that this behaviour was likely to cause alarm. In fact, it had actually caused alarm.

Lord Johnston, who heard the appeal with Lord Justice General Rodger, and Lord Cowie, said the classic definition of breach of the peace was contained in a 1949 case. In that case, the court had stated: ''Where something is done in breach of public order or decorum which might reasonably be expected to lead to the lieges being alarmed or upset or tempted to make reprisals at their own hand, the circumstances are such as to amount to breach of the peace.''

Lord Johnston said that definition demonstrated that, in assessing whether conduct amounted to a breach of the peace, the court had to apply an objective test to decide whether the behaviour was likely to cause alarm or fear.

While in this case the magistrate had found it proved that some of the people approached were placed in a state of alarm, the appeal court did not consider this was enough to show that breach of the peace had been committed.

Rethink likely

THE Appeal Court judgment is likely to trigger a rethink on policies, writes Chris Holme.

Ancient by-laws against vagrancy were largely swept away with the Civic Government Scotland Act.

Breach of the peace prosecutions were seen as the main safety net but, as the judgment illustrates, it is a net with a lot of holes.

Mr Tam Hendry, co-ordinator of Edinburgh Streetwork Project, said: ''We do not want to see people criminalised because of poverty.''

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