Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 109

HCA/2015-002891/XJ

Lady Paton

Lord Drummond Young

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST CONVICTION

by

MIRZA BAIG

Appellant;

against

PROCURATOR FISCAL, GLASGOW

Respondent:

Appellant:  C M Mitchell;  John Pryde & Co, Edinburgh (for Bready & Company, Glasgow)

Respondent:  Prentice QC, AD;  Crown Agent

4 November 2015

[1]        Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 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.”

 

[2]        On 31 January 2014 the appellant, accompanied by his brother, had an encounter with two parking attendants who had issued a penalty charge notice in respect of the appellant’s car.  The encounter was filmed and audio-recorded by a body camera worn by one of the attendants.  The appellant subsequently faced two charges, the first libelling an alleged breach of section 38(1) of the 2010 Act, and the second alleging a breach of section 50A(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995.  A trial took place in Glasgow Sheriff Court.  At the close of the Crown case, a submission of “no case to answer” was sustained in respect of charge 2, but rejected in respect of charge 1.  The appellant then gave evidence.  He was subsequently convicted of charge 1.  The sheriff deferred sentence for good behaviour.

[3]        The appellant appeals against conviction by way of stated case.  He contends that, on the evidence, his behaviour was not threatening in either a manner or degree such as to satisfy section 38.  Also his behaviour was not likely to cause a reasonable person to suffer fear or alarm.  Further he had not been proved to have intended to cause fear or alarm or to be reckless as to the effect of his behaviour.  Finally, his behaviour had been reasonable in the circumstances, and demonstrated that he might have been unaware of the possibility that he might be committing an offence. 

[4]        The sheriff explains in paragraph [7] of the stated case:

“I understand the appellant appeals his conviction rather than my decision in relation to the plea of no case to answer”

 

 [5]       The two questions posed by the sheriff at page 22 are as follows:

[29]      On the facts stated, was I entitled to convict the appellant?

[30]      Was the behaviour of the appellant such that even if it could be considered threatening or abusive, it was likely to cause a reasonable person to suffer either fear or alarm?

 

[6]        The sheriff’s findings-in-fact are set out in paragraph [6] as follows:

“(1)      The Crown witnesses, Fraser Brown and Peter McNicol are parking attendants.  Between 5 pm and around 6.45 pm on 31 January 2014, they were on duty on Northland Drive, Glasgow.  The appellant’s vehicle was parked on Northland Drive, in a restricted parking area, without displaying the necessary parking permit.  Mr Brown issued a penalty charge notice in relation to the appellant’s vehicle.

 

(2)        The appellant approached Mr Brown.  The appellant was aggressive and confrontational.  He was shouting.  He was verbally abusive.  He threw the penalty charge notice to the ground shouting ‘stick it up your arse’.  Mr Brown replied ‘excuse me’, to which the appellant responded, ‘I’ll fucking excuse nobody’.  As he walked away from Mr Brown, Mr Brown retorted with the word ‘arsehole’. 

 

(3)        The appellant and his brother returned to confront Mr Brown.  The appellant was verbally abusive.  He was confrontational.  He was aggressive.  His behaviour was threatening and abusive.  He accused Mr Brown of calling him a ‘foreign prick’.  He telephoned the police and repeatedly used the words ‘foreign prick’.  During the call, he stated ‘It’s Mr Baig, I’m the foreign prick as the, as the, you know the parking attendant says..’  He sought to intimidate Mr Brown and Mr McNicol.  He challenged them.  He followed them to their vehicle, stating ‘I’m just going to follow you about’;  ‘Ye, I’ll follow you about, it’s alright’;  ‘Ye, I will, I will just follow youse down the road then’.  Mr Brown told the appellant that he and Mr McNicol would drive down to the police station.  As Mr Brown and Mr McNicol walked back to their vehicle, the appellant asked them why they were walking away so fast.  Mr Brown replied ‘because we are leaving the incident, because you are mental’.  The appellant replied ‘Now you can’t handle it, no it’s okay, we’ll just, I’ll go wherever youse want to’.  After following the parking attendants, the appellant then accused Mr Brown and Mr McNicol of leaving the area because the police had been called.  Mr Brown stated ‘we issued a ticket and you act like a wain’.  The appellant shouted at passers-by ‘watch out guys there’s a couple of racist traffic wardens over here, especially that one over there’, referring to Mr Brown.  As they left, Mr Brown stated ‘bye bye junior’. 

 

(4)        The appellant’s conduct was likely to cause a reasonable person to suffer fear or alarm.  Mr McNicol and Mr Brown were fearful of, and alarmed by, the appellant’s behaviour.

 

(5)        The appellant intended his behaviour to cause Mr Brown and Mr McNicol fear or alarm, or was at least reckless as to whether his behaviour would have that effect.

 

(6)        The appellant’s behaviour was not, in the particular circumstances, reasonable.”

 

Submissions for the appellant
[7]        Miss Mitchell on behalf of the appellant submitted that where an altercation was purely verbal, the test for criminalisation of behaviour during that altercation had to be robust.  Section 38 contained no requirement that the behaviour was likely to lead to public disorder.  A contrast could be drawn with the common law breach of the peace (Smith v Donnelly 2001 SCCR 800 at paragraph [17];  Harris v HM Advocate 2010 SCCR 15 at paragraph [24]).  Accordingly the test for fear and alarm had to be a real one.  Reference was made to dictionary definitions of “fear” and “alarm”.  The findings-in-fact relating to the state of mind of the two parking attendants had been challenged (paragraph [10] on page 27 of the stated case), and the findings-in-fact were insufficient to satisfy the objective test of causing fear or alarm.  In all the circumstances, as the two parking attendants were not in a state of fear and alarm, and as no objective person was likely to suffer fear or alarm, the appeal should be allowed and the conviction quashed. 

 

Submissions for the Crown
[8]        On behalf of the Crown, the advocate depute contended that the findings-in-fact fully entitled the sheriff to convict.  The sheriff had the benefit of the audio-video recording which had lasted for seven minutes and 59 seconds.  The behaviour in question was not a mere argument: it went far beyond that.  Findings-in-fact 2 and 3 were particularly significant.  The sheriff had heard all the evidence.  The test in section 38 was easily met.  The appeal should be refused.  Reference was made to Patterson v Harvie 2015 JC 118.

 

Discussion
[9]        In Patterson v Harvie 2015 JC 118, Lord Justice General Gill explained:

“[19]    ... Section 38(1) sets out three clear and concise constituents of the offence.  Paragraphs (a) and (b) define the actus reus of the offence.  Whether the accused has behaved in a threatening or abusive manner and whether that behaviour would be likely to cause a reasonable person to suffer fear or alarm are straightforward questions of fact.  Paragraph (c) sets out the mens rea that is required.

 

[20]      It seems to me that the question under paragraph (b) is not whether the complainer suffered actual fear or alarm.  If it had been the intention of the Parliament that the complainer must have suffered actual fear or alarm, paragraph (b) could have said exactly that.  On the contrary, paragraph (b) sets out an objective test.  It provides that the requirement of the subsection is made out if the behaviour would be likely to cause a reasonable person to suffer fear or alarm.  A reasonable person is someone who is not of abnormal sensitivity.  If a reasonable person would have suffered fear or alarm, it follows on the objective test that it is no defence if the behaviour causes no fear or alarm to the individual complainer, who might be, for example, an intrepid Glasgow police officer.

 

[21]      ... In my view, the essence of the statutory offence is that the accused’s conduct is to be judged by an objective test in which the actual effect of the threatening or abusive behaviour on those who experience it is irrelevant.  If the requirements of paragraphs (a) and (c) are made out, the crime is complete if the accused’s behaviour would be likely to cause fear or alarm to the hypothetical reasonable person.

 

[22]      I am confirmed in this view by the wording in section 39 of the 2010 Act, which creates the offence of stalking.  Section 39(2)(c) creates as an element of the offence the requirement that ‘A’s course of conduct causes B to suffer fear or alarm’.  That confirms me in the view that the Parliament, having expressly required actual fear or alarm on the part of the complainer in section 39, cannot be held to have created such a requirement by implication in section 38.”

 

[10]      With that guidance in mind, we turn to consider the findings-in-fact.  As Lord Gill explained, section 38 (a) and (b) are “straightforward questions of fact”.  Accordingly the sheriff’s findings on those matters are, in our opinion, to be accorded considerable respect, as the sheriff heard all the evidence.   In this particular case, the sheriff not only had the benefit of hearing and seeing the witnesses, but also viewed a contemporaneous video-recording of the behaviour in question lasting for some seven minutes 59 seconds. 

[11]      Taking each constituent element of the offence in turn, it is our opinion that the findings- in-fact in paragraph [6], particularly subparagraphs (2) and (3), entitled the sheriff to conclude that the requirement in section 38(1)(a) was satisfied.  In other words the sheriff was entitled to conclude that the appellant had, as a matter of fact, behaved in a threatening or abusive manner. 

[12]      Further the sheriff found as a fact that “the appellant’s conduct was likely to cause a reasonable person to suffer fear or alarm” (see paragraph [6] subparagraph (4)).  In our opinion, there was ample evidence entitling the sheriff to form the view that, on an objective basis, the behaviour in question was likely to cause a reasonable person to suffer fear or alarm.  The sheriff went on to find that the two parking attendants had in fact been fearful of, and alarmed by, the appellant’s behaviour.  That was not an essential prerequisite of the offence, and even without that finding (which was criticised as we have indicated in paragraph [7] above) there was ample evidence which the sheriff accepted, entitling her to reach the view that she did. 

[13]      Finally the sheriff found as a fact that the appellant intended his behaviour to cause the two parking attendants fear or alarm, or was at least reckless whether his behaviour would have that effect.  Again, the sheriff, having heard all the evidence including the appellant’s own evidence, was entitled to accept some parts of the evidence, reject other parts, draw inferences and ultimately to find the third necessary prerequisite for the offence to be established.

[14]      Finally the sheriff found as a fact that the appellant’s behaviour was not, in the particular circumstances, reasonable: paragraph [6] (6) of the stated case.  Nothing has been said in the course of the debate before us to persuade us that she was not entitled to do so. 

[15]      For the reasons given above we consider that there is no merit in this appeal.  We answer the questions posed by the sheriff in the affirmative.  We refuse the appeal.