Appeal Against Conviction By Mirza Baig Against The Procurator Fiscal, Glasgow

JurisdictionScotland
CourtHigh Court of Justiciary
JudgeLady Paton,Lady Clark Of Calton,Lord Drummond Young
Neutral Citation[2015] HCJAC 109
Publication Date20 November 2015
Date04 November 2015
Docket NumberHCA/2015-002891

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
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