Orr v Mundell
| Jurisdiction | Scotland |
| Judge | Sheriff Principal MW Lewis,Sheriff Principal CD Turnbull,Sheriff PJ Braid |
| Judgment Date | 14 August 2018 |
| Court | Sheriff Appeal Court |
| Docket Number | No 2 |
| Date | 14 August 2018 |
[2018] SAC (Crim) 11
Sheriff Principal MW Lewis, Sheriff Principal CD Turnbull and Sheriff PJ Braid
Paterson v Harvie [2014] HCJAC 87; 2015 JC 118; 2014 SLT 857; 2014 SCCR 521; 2014 SCL 606
Justiciary — Crime — Breach of the peace — Appellant holding a placard with religious insults outside a place of worship — Whether abusive behaviour that would be likely to cause a reasonable person to suffer fear or alarm — Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), sec 38(1)
David Orr was charged in the sheriffdom of North Strathclyde at Paisley on a summary complaint at the instance of Laura Mundell, procurator fiscal there, the libel of which set forth a contravention of sec 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, aggravated by religious prejudice. The appellant was convicted after trial, and appealed against his conviction and sentence by stated case to the Sheriff Appeal Court.
Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) (‘the 2010 Act’) provides, “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.”
The appellant was convicted, after trial, of a contravention of sec 38(1) of the 2010 Act, aggravated by religious prejudice, by holding a placard approximately three feet square, bearing the words “God hates Catholics” and, on the reverse, “God hates the Kirk”, outside the main gate of a cathedral shortly before a religious service was scheduled to begin. The appellant had claimed that it was a peaceful protest and that he did not intend violence. The appellant was fined the sum of £400.
The appellant argued that the sheriff had erred in holding that the appellant's conduct was abusive and likely to cause a reasonable person to suffer fear and alarm. The appellant further argued that the sentence imposed was excessive.
Held that: (1) the appellant's behaviour was abusive, where the placard directly conveyed a message of hatred to those persons likely to be reading it, and represented the antithesis of their religious beliefs (para 9); (2) the appellant's behaviour would be likely to cause a reasonable person to suffer fear or alarm, it was indicative of alarm that the behaviour caused a number of people to complain to the police, and it was immaterial that no violence or aggression was displayed (para 10); (3) the appellant's conduct was to be judged by an objective test and the hypothetical reasonable person would be alarmed by the appellant's behaviour given its timing and location, its insulting nature to followers of the Roman Catholic faith and the potential for it to have given rise to a confrontation outside a place of worship (para 10); (4) the sentence imposed fell within the discretion available to the sheriff (para 13); and appeals against conviction and sentence refused.
Paterson v Harvie 2015 JC 118 followed.
The cause called before the Sheriff Appeal Court, comprising Sheriff Principal MW Lewis, Sheriff Principal CD Turnbull and Sheriff PJ Braid, for a hearing, on 5 June 2018.
At advising, on 14 August 2018, the opinion of the Court was delivered by Sheriff Principal CD Turnbull—
Opinion of the Court— [1] Following trial, the appellant was convicted of a contravention of sec 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) (‘the 2010 Act’), aggravated by religious prejudice.
[2] Shortly after 9.00 am on Sunday, 26 February 2017, various members of the public telephoned or called at the public counter of the main police office in Paisley, complaining about, or reporting, the behaviour of the appellant, who was then standing outside St Mirin's Cathedral.
[3] Police officers attended the cathedral (which is in close proximity to the main...
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