APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 96
Lord Eassie Lady Smith Lord Wheatley	Appeal Nos: XC701/12, XC282/13, XC702/12 and XC283/13   OPINION OF THE COURT   delivered by LADY SMITH   in   APPEALS UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995   by   ANDREW JOLLY Appellant;   against   HER MAJESTY'S ADVOCATE Respondent:   and   HER MAJESTY'S ADVOCATE Appellant;   against   ANDREW JOLLY Respondent:   _______

 

Appellant and Respondent: A Ogg, Solicitor Advocate; Drummond Miller

Respondent and Appellant: Wade, AD; Crown Agent

 

9 August 2013

Introduction

[1] The accused, Andrew Jolly, stands indicted, at Falkirk Sheriff Court, on an indictment containing three charges of which charges 2 and 3 are in the following terms:

"(002) on various occasion between 12^th January 2012 and 10^th July 2012 both dates inclusive at Her Majesty's Young Offenders Institution, Polmont, Brightons, you ANDREW JOLLY did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did, to Valerie McKenzie, Lee Paul Tait, Tracey Lynch and Elizabeth Walker, all c/o Central Scotland Police, Falkirk, then acting in the course of their duties as social workers and nursing staff, repeatedly utter threats of violence regarding L B, c/o Strathclyde Police, Glasgow, members of her family and your former work colleagues; CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010

 

(003) you ANDREW JOLLY being an accused person and having been granted bail on 21^st August 2012 at the High Court of Justiciary at Edinburgh in terms of the Criminal Procedure (Scotland) Act 1995 and being subject to the condition inter alia that you do not enter or approach Westerhill Road, Bishopbriggs, Glasgow did on 22^nd August 2012 at Westerhill Road, Bishopbriggs, Glasgow fail without reasonable excuse to comply with said condition in respect that you did enter said Westerhill Road, Bishopbriggs, Glasgow; CONTRARY to the Criminal Procedure (Scotland) Act 1995, Section 27(1(b)."

 

Charge 1, which alleged the sending of letters in breach section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010("the 2010 Act"), was withdrawn by the Crown in the course of the proceedings to which we refer below.

[2] Regarding charge 2, in the course of the hearing before the sheriff, the Crown conceded that the conversation between the accused and Elizabeth Walker could not properly be relied on and stated that the Crown would, accordingly, only seek to rely on statements made to Valerie McKenzie, Lee Paul Tait and Tracy Lynch, all of whom were social workers, between the dates 12 January 2012 and 3 May 2012.

[3] At a first diet, on 15, 16, 19 and 20 November 2012, the following issues were raised and debated: (i) the competency and relevancy of charge 2, (ii) the fairness of relying on the evidence which the Crown proposed to lead in relation to charge 2, (iii) whether the prosecution of the allegations in charge 2 amounted to oppression, and (iv) whether it was oppressive to allow the proceedings in respect of charge 3 to continue. The sheriff held that charge 2 was a competent one but that it would be unfair at common law were the Crown to be permitted to lead the evidence upon which it proposed to rely in support of it; that evidence was, accordingly, held to be inadmissible. He did not consider that any issue as to the relevance of the charge arose. The case was remitted back to the sheriff following the lodging by both parties of notes of appeal and he heard further submissions on 19 April 2013. He again repelled the pleas of oppression in relation to both charges whilst observing that there was legitimate cause for anxiety in relation to charge 3. A devolution issue minute having, by then, been lodged, he also expressed the view that the unfairness which he had identified would result in a breach of article 6 ECHR if the prosecutor were to deploy the evidence of the social workers at trial.

[4] The Crown presented a note of appeal under section 74 of the Criminal Procedure (Scotland) Act 1995, submitting that the sheriff had erred in holding the evidence which would be relied on for charge 2, namely what the accused said to the social workers at interview, to be inadmissible. In the course of the hearing before us, the advocate depute stated that the Crown would not proceed with charge 3 if the Crown appeal was not upheld.

[5] The accused also presented a note of appeal, submitting that the sheriff had erred in repelling his pleas of oppression.

[6] The sheriff granted leave to appeal to both the Crown and the accused on 20 November 2012 and (insofar as his decisions were respectively adverse to them) in relation to the issues of oppression and art 6 ECHR discussed at the hearing on 10 April, on 14 May 2013.

 

Background

[7] On 26 May 2011, the accused was convicted of two charges of contraventions of section 38(1) of the 2010 Act, two charges of contraventions of section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 and one charge of a breach of section 234A of the 1995 Act. The first and third charges involved the accused having sent offensive and threatening letters to an ex-girlfriend and others including former work colleagues. He was sentenced, at the High Court, to be detained for a total period of three years, backdated, with the result that his earliest date of release was 1 June 2012. He was also made subject to a supervised release order for 12 months.

[8] The accused was interviewed by the social workers whilst detained in Polmont Young Offenders' Institution ("YOI"), as part of their preparation for the implementation of the supervised release order. At the first diet, the sheriff heard evidence from the social workers about those interviews. The sheriff advises that the evidence was presented "largely without contention", he was entirely content as to the social workers' credibility and, subject to some inevitable uncertainties arising from the passage of time, he accepted them as reliable.

[9] Valerie MacKenzie interviewed the accused on 12 and 31 January 2012. She had been appointed to be his allocated social worker and supervisor when he was released. Her interviews of the accused were for the purpose of preparing for that release. The sheriff's summary of her evidence regarding the interview on 12 January includes the following:

"...at the start of the meeting she explained to Mr Jolly the purpose of the meeting, what her job was at the time and what it would be eventually as far as he was concerned. She explained that she was preparing a home background report and she would then meet regularly up to his release......... She explained that it was not compulsory for Mr Jolly to attend whilst in custody but when he was released, it would be a standard condition of the order that he would require to meet with the supervising officer when required. She said that she advised Mr Jolly he had the option to attend but that she was glad that he had come along. She said that there was no penalty which would follow if Mr Jolly did not attend. It was a matter of his free will if he attended or not and he could leave the meeting if he wished. The home background report would be prepared in any event but it would be better if he participated. She said that in the letter sent to Mr Jolly it was not amplified that he was free to attend or not and they always finished the letter sent to (sic) saying that the social worker looked forward to meeting to (sic) the individual prisoner............

 

Mr Jolly was willing to engage and discussion flowed freely. She was next asked if Mr Jolly became upset and confirmed that he did when discussing his mental health. He was then talking about his parents and became upset. She told me that it was at this point that he made comments about his victim. He said that he was not sleeping well at night because he thought constantly about how to get revenge. She said that it was all comments in relation to L B and making threats against her and her mother. Mr Jolly also mentioned RW and people he used to work with at A and how they had made a fool of him. He said that these people had got in his way and therefore he would have to deal with them and it was their fault. She said she couldn't remember the exact words because she had met with him a few times but she recalled him saying that he wanted to get a gun and shoot L and shoot himself ................ She confirmed that following the comments made on 12 January she was not personally concerned in relation to her own position. She was concerned for the safety of the people that Mr Jolly was talking about."

 

[10] Ms MacKenzie returned to her office after the interview of 12 January 2012, spoke to a senior colleague and then contacted the police to tell them what the accused had said. She then discussed matters with Mr Lee Tait, the social worker at Polmont YOI and the psychological team based there.

[11] Ms MacKenzie interviewed the accused again on 31 January 2012. Mr Tait accompanied her on that occasion. The sheriff's summary of her evidence regarding that interview includes:

" ... He restated a lot of what he had said previously and both she and Mr Tait said that they were very serious comments and they required to be taken seriously by everyone involved. She recalled that one of his replies was to the effect that 'there is not enough police to keep an eye on me 24/7' .............. She confirmed that when dealing with the threats, she asked why Mr Jolly felt that way to help clarify the position for her. She was interested in any information which would be provided to her. She was asked if Mr Jolly was told that his statements could result in him being prosecuted and being used in evidence. She answered that she would not do that ..............She agreed that to some extent the purpose of the meeting of 31 January was to revisit the threats that had been made and to see if Mr Jolly was maintaining them. She confirmed that Mr Jolly was not given the option of speaking to a solicitor because it was not something that they would normally talk about. ............. ".

 

[12] Mr Tait also gave evidence and the relevant part of the sheriff's summary includes the following:

"He said that he thought that Mr Jolly had asked if he had to meet him or not and his response would have been no but it might be beneficial. He confirmed that the ground rules were the same with every prisoner that he worked with. He confirmed that his usual phrase to them was (sic) in respect of any meeting was that it would be confidential but that if you say anything which impact (sic) on health and safety or wellbeing of another person that may not stay with me. ............ He recalled that Mr Jolly had become upset, tearful, when speaking about aspects of his life. He said that he had spoken about his family and had not spoken positively about the victims of the crimes. He confirmed, however, that it was not unusual to hear young people talk negatively of people who got them into the situation of being in prison ........................... The purpose of the meeting was to clarify any plans Mr Jolly had for his release including where he would go and any job. It was to ensure that Mr Jolly was aware of the conditions of his release and to clarify the statements which he had made about the victim and others .................. his memory in relation to LB was that Mr Jolly said he was going to cause serious or significant harm up to and possibly including death. ........................... question (sic) must have needed to be posed when they met. He had met Valerie MacKenzie and they clearly agreed that they needed to get to the bottom of it, so reference would have had to be made to the statements that he had made to Valerie about the victim and his intentions ...................... As a consequence of the things that he had been told about Mr Tait was concerned about the risk that Mr Jolly proposed (sic) upon release. He confirmed that for the social work department, risk is simply 'their bread and butter' of existence. He could not remember if any comment had been made in respect of warning Mr Jolly about the risk of prosecution or some involvement in the court process. He did not remember saying to him that any information could be shared with the police. He recollected that Mr Jolly would have been told about the MAPPA position and that if the police wanted to pursue it would be up to them and it was also up to the police to determine if any offence had been committed.....".

 

[13] The accused was interviewed again on 3 May 2012, this time by Tracey Lynch, to whom his case had been transferred from Valerie MacKenzie. She was also accompanied by Lee Tait. The sheriff's note of Tracey Lynch's evidence in relation to that interview includes the following:

"... She emphasised the purpose of the meeting on 3 May was to introduced (sic) herself, to expand upon her role and that they would be working together when he was released. Her intention was to explain the supervised release order and to find more general information about him ........... she explained the meeting would be confidential but that if he advised he had committed a further offence or was going to commit any offence and if there was a threat to himself or to others she explained that she would have to pass that on ................... if the offence was described in relation to something else and if that involved serious offending then it might need to be disclosed to the police depending upon the situation. The advice generally would be that they report to the police anything they thought was (sic) serious risk to another person .................. she spoke to Mr Jolly about the reasons why he was in prison and asked how he felt about it now and his feelings for the people involved ........... Mr Jolly said it was his ex- girlfriend. He said that he still despised her and blamed her for the situation he was in. He thought about her but he was not in love with her and blamed her and still had feelings of hostility towards her. These feelings had not left him. He said that he had feelings also towards her family as well. She said that she thought that one of the things he had said was that he had thought of harming L. He then said he would not harm her but would harm her mum instead. ............ he would take vengeance on anyone who hurt him ............. he would shoot them ..............................

 

.......... she was very concerned about the information that she was being given ............... His comments raised with her concerns as to how he would cope on his release and ..... how he would deal with his feelings towards LB........ she also had concerned (sic) towards LB that Andrew Jolly may harm her or her family. She said that halfway through the interview she and Mr Tait had raised with Mr Jolly that they would to report and alert the police to his concerns ............

 

......... she returned to the social work department and discussed her concerns with a colleague who advised her to contact the police which she did. She said that the difference in this case was by reference to his past history, what he was saying at the time, and the fact that he was calm when saying it. She emphasised the fact that he had said he wouldn't hurt L but hurt her mother. She said that taking this together with his previous behaviour this caused her extreme fear and alarm for them..................

 

.......... She agreed with the proposition that it was much more in the public interest for dangerous persons to be closely released (sic) on supervision and effectively supervised ....................

 

......... She accepted that the comments made concerned her but not in her personal capacity."

 

 

The sheriff's reasons

[14] Before the sheriff, the argument for the appellant was that the evidence of the social workers should be held to be inadmissible because it had not been obtained fairly. In his report dated 10 January 2013, the sheriff sets out his reasons for finding that the evidence of the interviews was inadmissible:

"Decision

 

I reached my decision on a number of separate features. In the first instance there was no evidence presented to me that Mr Jolly had made prior threats in the general prison population or in his earlier discussion with Mr Tate. The purpose of the social work involvement with Mr Jolly was to effectively supervise him in terms of the supervised release order imposed in an earlier sentence. To do that the social workers had a legitimate interest in being properly informed. I concluded that it is in the general public interest that those to be supervised should genuinely and comprehensively engage even if the views which they are express are unpalatable, distorted, perverse or objectively repugnant. I concluded, however, that the protection of the public should not generally be equiparated with the need to prosecute those in respect of whom supervision is required even where their supervision may present challenges. There is provision, as in this case for on-going supervision and in other areas, for example in relation to sexual offence prevention orders, where measures exist for action to be taken to provide security and protection whilst not recoursing to criminal prosecution.

 

In reaching my decision on what I consider to be the fundamental issue I was genuinely and, perhaps uniquely of all of those involved with Mr Jolly, unaware of the nature or detail of his past behaviour and convictions other than the basic essential that he was the subject of a supervised release order and that in some ways that involved LB. There was in my view no suggestion that the comments made by Mr Jolly were other than by direct invitation of the social workers to give precisely the information which he was being asked or to reiterate or amplify information which he had earlier given. This was not a case where, for example, Mr Jolly gratuitously threatened the social workers themselves. Nor was it a case where on a completely unconnected basis he engaged in behaviour which was not the subject of discussion with him. At the point where the social workers conducted the interview with him they knew that there was likely to be a prospect of his reaction to the earlier victims and, precisely for the reasons that they wanted to properly supervise Mr Jolly they set about asking him questions in regard to his present attitude. His responses to those questions may of course have been many and varied but, among the most likely responses he would make had to have been the possibility that he would make derogatory comments and potentially indicate his hatred or other vehement reaction towards the individuals involved. In my view to permit the evidence obtained in such a context as the fundamental foundation of a prosecution against the individual is contrary to all principles of fairness. I consider the approach taken by Sheriff Vannett in Murray v HMA was sound. I consider that the decision of the appeal court in Tole is to reflect that even if there is some public interest in obtaining information that does not overcome the requirement of any criminal justice system to be fair.

 

In the arguments presented to me no real reference was made to the European Convention on Human Rights albeit I understood that there were 'Devolution' arguments which could be made and general descriptions which might otherwise be put forward. In my view however the arguments presented to me were consistent with the long traditions of Scots law as being able to evaluate what is unfair and excluding that from a jury's consideration. In the present case, while denigrating the comments made by Mr Jolly and recognising the impact that his attitude may have and the need to neutralise any risk he may pose to those who justify protection I was satisfied that the objection to the admissibility evidence to each of the interviews must be upheld and I ruled accordingly."

 

 

The Appeal

Submissions for the Crown

[15] In inviting us to uphold the Crown appeal, the advocate depute pointed out that the offence under section 38(1) of the 2010 Act was different from the common law offence of breach of the peace. The alleged behaviour of the accused was threatening and that was, she submitted, enough. She accepted that the terms of charge 2 were not such as to suggest that the threats were communicated to LB, her family or the accused's former work colleagues. The behaviour did not, however, require to be directed to another person in the vicinity at the time for the offence to have been committed. Nor did the threats which constituted the behaviour in this case have to be uttered to the object of those threats; the recipient of them did not require to be the person who was actually threatened. That was not, she submitted, what section 38(1) required.

[16] The advocate depute cited, as an example, a scenario where the threat was that a person's child would be harmed and submitted, rhetorically, that section 38(1) must surely cover such circumstances. That said, she accepted that the terms of the statute fell to be interpreted in favour of the appellant, that to suffer fear a person would actually have to be afraid and that being alarmed involved a perception of imminent danger to the person.

[17] The advocate depute relied at one point on the social workers having had concerns and having reported what the accused said, at interview, to the police. However, she also relied on the case of Rooney v Brown [2013] HCJAC 57; 2013 SCCR334 as being authority for the proposition that it was enough, for a contravention of section 38(1) of the 2010 Act, that the behaviour was such as would have caused a reasonable person to suffer fear and alarm. Ultimately, her submission appeared to be that the Crown did not have to allege - and was not alleging - that the social workers themselves suffered fear and alarm. She also referred to the case of HMA v Baillie [2012] HCJAC 158 whilst recognising that it concerned a common law charge of having uttered criminal threats. Nonetheless, it showed that threats required to be judged objectively and it did not matter, she submitted, that they never reached the ears of the person at whom they were directed.

[18] The advocate depute relied on Tracey Lynch's evidence that what the appellant said had caused her "extreme fear and alarm for them". Whilst she accepted that the context was the witness' expressions of "concern", that evidence was relevant to an assessment of how the reasonable person would react.

[19] In all these circumstances, the evidence which the Crown proposed to lead at trial was, she submitted, directly relevant to the charge. The evidence was, further, essential to the Crown's prosecution of charge 2. Without it, the Crown would not proceed with either charge 2 in which case, charge 3 would not be proceeded with either.

[20] Further, the advocate depute submitted that there would be no unfairness in allowing the evidence to be led. She accepted that the sheriff had applied the correct test when determining whether or not the evidence was admissible. However, he had erred (a) in placing undue reliance on the cases of HMA v Murray 2007 SCCR 271 and Tole v HMA [2012] HCJAC XC22/12 both of which could be distinguished, (b) in failing to appreciate that this was not a case of self-incrimination, in which case the appellant would, once a suspect, have been entitled to a caution, (c) in failing to place sufficient weight on the social workers having warned the appellant that what he said would be reported to the police and having advised him that his attendance at the interviews was not compulsory, (d) in failing to place sufficient weight on the public interest when assessing fairness, and (e) he failed to place sufficient weight on the serious nature of the threats.

 

Submissions for the Appellant

[21] Ms Ogg submitted that the sheriff had not erred. Further, not only would it not be fair to admit the evidence, it was not relevant to the statutory charge. The commentary at the end of the report of the case of HM Advocate v Murray, although involving a charge of breach of the peace, applied directly to the present case insofar as it was there observed that social workers (who had been interviewing that appellant in the context of a probation order and to whom he had stated that he would assault and murder a child) could hardly be called complainers and that the criminal law was not intended to inhibit probationers from telling social workers about their fears and fantasies. The case of Tole v H M Advocate, where it was deemed unfair to admit into evidence statements made by an appellant in the course of examinations of him by psychiatrists for the purpose of assessing his mental state, demonstrated that context was all important. The case of McDonald v HMA 2008 SCCR 181, where it was held that charges of breach of the peace were not competently brought because the conduct complained of had occurred in the context of the carrying out of risk assessments prior to the appellant's release, was also relevant. These authorities as to whether or not it was fair to admit evidence in support of a charge of breach of the peace were relevant to a consideration of the statutory charge. All that section 38(1) achieved was, broadly put, to enable the prosecution of what, were it not for the lack of a public element, could have been charged as the common law offence of breach of the peace.

[22] Regarding the provisions of section 38(1), whilst there need not be a public element to the behaviour, there had to be a complainer. The behaviour required to be directed at someone who was present at the time. In this case, what was said by the appellant was not abusive and it was not directed at any of the persons who were present in the interview room. Further, there was no suggestion of fear - which required to be fear for the safety of the person - or of alarm; there was no flagrant alarming conduct. Applying an objective test, there was nothing that would have caused a reasonable person to suffer fear and alarm.

[23] Ms Ogg also submitted that the Crown would have to establish, in addition to the above, that the appellant intended to cause fear and alarm or was reckless as to whether that was the outcome of his conduct. There was, however, nothing in the charge or in the evidence that demonstrated that.

[24] Finally, Ms Ogg referred us to the official report of the relevant debate in the Scottish Parliament on the Criminal Justice and Licensing (Scotland) Bill and to the terms of a letter dated 23 June 2010 from the Cabinet Secretary for Justice to the Convenor of the Justice Committee, at Stage 3 of the Bill, both of which demonstrated, she submitted, that there was no parliamentary intention to create a wholly new offence; all that was sought was to eliminate the need, following the decision in Harris v HMA 2010 SCCR 15, for there to be some public element before threatening or alarming conduct could be prosecuted as common law breach of the peace.

 

Discussion and Decision

[25] The sheriff was in the somewhat unusual position of hearing the Crown evidence at the first diet, in advance of trial, and a review of the clear and relatively full narration of that evidence included in his report confirms that the Crown has no intention of seeking, at trial, to show that the accused intended to harm anyone present at the interviews or that the social workers were themselves placed under apprehension of personal harm. We are satisfied that the evidence demonstrated, as is indicated by the terms of the charge, that the Crown would not propose to lead any evidence of actual fear or alarm being suffered by any of the social workers at all. We do not accept that Tracey Lynch's evidence that what the appellant said caused her to suffer "extreme fear and alarm" for LB and the others specified in the charge amounted to her asserting that she suffered fear or alarm herself. It seems plain from reading the sheriff's note of her evidence as a whole that her own feelings were confined to feelings of concern for others. As regards the other social workers, they appear to have said nothing about suffering fear or alarm. There was, further, no suggestion that anything said by the accused indicated that he would seek to harm any of the social workers.

[26] Having considered the report of the evidence led before the sheriff and the advocate depute's submissions, we consider it to be clear that the Crown do not allege that the social workers named in charge 2 themselves suffered fear or alarm. Nor is it suggested that that is what the accused intended or that he was reckless about that. Rather, the Crown case would be that the social workers heard the accused say things which, had LB, members of her family and the appellant's former work colleagues been present, would have caused them, as reasonable persons, fear or alarm. But none of them were present. The Crown's approach is to say that their absence does not matter because all that the statute requires is that the hypothetical reasonable person would have suffered fear or alarm in the circumstances.

[27] We do not accept that the Crown's approach is correct. Section 38(1) of the 2010 Act provides:

"38 Threatening or abusive behaviour

 

(1) A person ("A") commits an offence if-

 

(a) A behaves in a threatening or abusive manner,

(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm."

 

[28] Accordingly, where (i) a person behaves in a threatening or abusive manner which (ii) in fact causes another person to suffer fear or alarm, (iii) in those circumstances, a reasonable person would have suffered fear or alarm and (iv) causing that fear or alarm is either what the person intended or was a consequence in relation to which they were reckless, then but only then has an offence been committed. Subsection (c ), which deals with mens rea, of itself plainly points to it being a requirement that fear or alarm has in fact been suffered by those to whom the threatening or abusive behaviour was directed.

[29] To put matters another way, it is not enough that someone present suffers fear or alarm; some people may, no doubt, suffer fear or alarm when a reasonable person in the same position would not do so. It must also be established that a reasonable person in that position would have suffered fear or alarm. That, essentially limiting, provision that a reasonable person would suffer fear or alarm does not, however, mean that if all that can be said is that the hypothetical - and thus absent - reasonable person would, had that person been present, have suffered fear or alarm, an offence has occurred. It would, we consider, be extraordinary for that to have been the parliamentary intention and we cannot find any basis on which it can properly be contended that it was. Rather, it is clear to us that what has been legislated for in terms of section 38(1) of the 2010 Act are circumstances where real fear or alarm has been suffered by a real complainer.

[30] Regarding the case of Rooney v H M Advocate, which was relied on by the Crown in support of the submission that there was no need for actual fear or alarm, we note two matters. First, the issue was not whether or not the statutory offence required there to be actual fear or alarm but whether or not the conduct which occurred was behaviour which would, in terms of section 38(1)(b), have caused a reasonable person to suffer fear and alarm. Secondly, although it seems to have been submitted on behalf of the appellant that police officers who had been threatened by the appellant were not themselves placed in a state of fear or alarm, the sheriff had made findings which were relied on by the court, to the effect that the police officers took the threats seriously because of their prior knowledge of the appellant. Thirdly, whilst the threats were largely not directed to the police personally, to some extent they were. The case is not, accordingly, authority for the proposition that there is no requirement, under section 38(1), for any person to suffer actual fear or alarm and it can, in any event, be distinguished on its facts.

[31] The decision in the case of Baillie v H M Advocate, also relied on by the Crown, is not in point. It concerns the essential elements of the common law crime of uttering threats and does not afford any guidance as to the proper interpretation of the statutory offence alleged in charge 2.

[32] As we have noted above, the sheriff did not decide whether or not charge 2 was a relevant charge; he did not consider that an issue of relevancy arose. He only determined, according to his report, whether or not the charge was competent. Were a restricted view to be taken of the issues that may be considered on an appeal under section 74(1) of the 1995 Act - which permits appeals only against a "decision" taken at a first diet - it would not be open to us to determine whether or not charge 2 was a relevant one. We consider, however, that we require to do so. First, when the sheriff's reasons for finding that the charge was a competent one are examined, it seems clear that he did, in effect, decide that its terms are relevant on the basis that the offence created by section 38(1) of the 2010 Act may be committed in circumstances where threats are not directed to the person(s) present - who suffer no fear or alarm - but to others. Secondly, in the circumstances of this case, the issue of the relevancy of charge is clearly important, if not critical.

[33] Regarding relevancy, we are satisfied that on any ordinary reading of the terms of charge 2, they do not indicate that the Crown will seek to establish that the social workers suffered actual fear and alarm. Indeed, they do not indicate that the Crown will seek to establish that any person suffered fear and alarm. Rather, they indicate that the Crown will seek to establish that threats to do violence to LB and her family and to the accused's former work colleagues were made outwith their presence but in the presence of certain named social workers who were carrying out their professional duties at the time. They, further, indicate that the Crown will seek to establish that a reasonable person would suffer fear and alarm but it is not clear whether that is a reasonable person in the position of the social workers or a reasonable person in the position of LB and the others referred to. In these circumstances, for the reasons we have explained above, the charge is not relevantly stated; quite apart from anything else, it is not suggested that any fear or alarm was suffered by the social workers.

[34] Further, whilst we acknowledge that the leading of evidence at the first diet enables an examination of the relevancy of the Crown's case to be carried out, unusually, not only on the basis of the wording of charge 2 but on the basis of its wording as supplemented by that evidence, it is appropriate to do so. That procedure was properly adopted, particularly since there was a challenge to the fairness of the Crown being able to rely on the evidence, and we consider that it would be wrong to ignore it when determining, as we have to do, whether or not charge 2 was relevant.

[35] We should, however, also examine the sheriff's finding that it would be unfair to allow the evidence of the interviews to be relied on. We are not persuaded that he erred in any respect. We agree that the context was very important. The accused was engaged in a social work process, devised in the public interest, with a view to preparing him for release and to enable the social workers to prepare for the performance of their statutory duties during the period of his supervised release order. Whilst attendance at the interviews was not compulsory, it was plainly encouraged and, on participating, the accused was, quite reasonably, expected to co-operate with the social workers fully and frankly. It is well known by judges and legal practitioners who practise in the criminal courts that, in the course of such interviews, it is not at all uncommon for the person concerned to express feelings of bitterness, anger and/or resentment towards any complainer who they see as responsible for them having been convicted and for the consequent loss of their liberty. It is, however, in the public interest that a person in the appellant's position co-operates in such circumstances both to enable there to be a proper assessment of risk and to enable that part of the social work process that is directed at assisting them to deal with such feelings to be as effective as possible.

[36] The sheriff's report of the evidence show that the accused was asked questions at the three interviews which were, at times, quite deliberately posed in such a way as to explore with him his feelings about LB and others. There is nothing wrong with that being done in the context of a pre-release interview by such a social worker. Indeed, it is important that such matters are, in the public interest, properly explored and no-one in the position of the accused should have to fear that what he says may be used, separately, to prosecute him. He did not step outside the parameters that were, in the course of those interviews, set for him by the interviewers. We would add that, on one view, much of what he was alleged to have said and which was then relied on for the purposes of charge 2 did not actually amount to articulation of threats but was, rather, an explanation of his feelings. We note, for instance, that Valerie MacKenzie's notes of the interviews she attended, to which the sheriff refers, record that the appellant spoke about his feelings regarding various people including LB and about what he might wish to do rather than of what he actively intended to do.

[37] Turning to the Crown submission that the sheriff placed too much reliance on the cases of Murray v HM Advocate and Tole v HM Advocate, we do not find any indication in his reasons that he did so. However, neither case was irrelevant to the issue that he had to determine. Both lend support to the arguments for the appellant, particularly when Murray is considered in the light of the subsequent decision in the case of Macdonald; Lord Johnston's opinion in the latter, though brief, supports the view that since what is said within the proper limits of an interview carried out to assess a prisoner with the public interest in mind, cannot amount to a breach of the peace, it cannot, either, amount to a contravention of section 38(1) of the 2010 Act. Tole demonstrates that answers obtained from an accused person for a discrete purpose - in that case to determine his mental state - cannot thereafter be used as evidence to support charges already brought because it would be unfair to do so. They are good examples of the importance of context.

[35] The sheriff considered that it would be contrary to all principles of fairness to allow the evidence of what the appellant said at these interviews to be used in evidence to prosecute charge 2 and we agree. We will, accordingly, in terms of section 74(4)(a) of the Criminal Procedure (Scotland) Act 1995, affirm his decision to that effect.

[38] That effectively disposes of the appeal, given the Crown's acceptance that charge 2 cannot be prosecuted without the evidence of the social workers and their stated position that charge 3 will not be proceeded with if they cannot proceed with charge 2. In these circumstances, it is not necessary for us to deal with the other arguments raised regarding oppression and article 6 of the convention.