Appeals Against Conviction By Ewan Paterson And Others Against Pf Airdrie

JurisdictionScotland
JudgeLord Brodie,Lord Drummond Young,Lady Clark Of Calton,Lord Justice General,Lord Justice Clerk
Judgment Date14 August 2014
Neutral Citation[2014] HCJAC 87
Docket NumberXJ1025/13
Date14 August 2014
Publication Date15 August 2014

[2014] HCJAC 87

Lord Justice-General (Gill),

Lord Justice-Clerk (Carloway), Lord Brodie,

Lord Drummond Young and Lady Clark Of Calton

No 11
Paterson
and
Harvie

Justiciary Statutory offence Threatening or abusive behaviour likely to cause fear or alarm to a reasonable person Whether evidence of actual fear or alarm to complainer required Objective test Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), sec 38(1)

Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) (the 2010 Act) provides, (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.

The appellants were each individually charged and convicted on summary complaint of having contravened sec 38(1) of the 2010 Act. Each complaint narrated a libel that the appellant had behaved in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm, in contravention of the provisions of the legislation. In each case, there was no evidence of any person having suffered actual fear or alarm as a result of the conduct of the appellant. The appellants appealed against conviction.

Held: that the essence of the offence in sec 38(1) of the 2010 Act was that an accused's conduct was to be judged by an objective test in which the actual effect of the threatening or abusive behaviour on those who experienced it was irrelevant and if the requirements of paras (a) and (c) were made out, the crime was complete if the accused's behaviour would be likely to cause fear or alarm to the hypothetical person (paras 1922, 3336); and appeals refused.

Observed that in the circumstances of Jolly v HM Advocate, had the defence provided for in sec 38(2) of the 2010 Act been advanced, it would have presented an irresistible defence to the prosecution (para 29).

Jolly v HM AdvocateSC2014 JC 171overruled andRooney v BrownUNK2013 SCCR 334approved.

Ewan Paterson, David Bow and Jamie Love were each charged individually in the sheriff court at the instance of the procurator fiscal and each were convicted upon separate complaints of contraventions of sec 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. Each appealed to the High Court of Justiciary by way of stated case against their convictions on a point of law. The appeals were heard together.

Cases referred to:

Jolly v HM Advocate[2013] HCJAC 96; 2014 JC 171; 2013 SLT 1100; 2013 SCCR 511; 2013 SCL 832

Rooney v Brown[2013] HCJAC 57; 2013 SCCR 334; 2013 SCL 615

The appeals were heard before the High Court of Justiciary, comprising the Lord Justice-General (Gill), the Lord Justice-Clerk (Carloway), Lord Brodie, Lord Drummond Young and Lady Clark of Calton.

At advising, on 14 August 2014

Lord Justice-General (Gill)

Introduction

[1] Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) (the 2010 Act) provides as follows:

Threatening or abusive behaviour

38.(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.

Each of the appellants was convicted under sec 38(1). The question in each case is how sec 38(1)(b) is to be interpreted. On that question there are two seemingly conflicting decisions of this court.

Rooney v Brown

[2] In this case the appellant, having been arrested, was taken from the scene in a police van. During the journey he was repeatedly abusive to the police officers. He shouted remarks such as Shoot Gerry Adams, Fuck Billy Sands, Kill all Paki bastards and Kill all Fenians. He also whistled and sang sectarian songs and in a raised voice ranted sectarian and racial threats of violence. For this, he was charged under sec 38(1).

[3] The sheriff found that while the officers took the threats to them seriously because of their knowledge of the appellant, and while they found the sectarian and racist comments offensive, there was no evidence that they were fearful or alarmed. The sheriff convicted the appellant on the view that it did not matter that the officers were not themselves in a state of fear or alarm. The appellant's remarks were likely to cause a reasonable person to suffer fear or alarm.

[4] This court refused the appeal. The following is the relevant part of the opinion of the court (para 6) delivered by Lady Dorrian:

In our view the sheriff had a proper evidential basis for concluding as he did. The matter is not to be decided by the reaction of individual police officers but on an objective basis. The court has to consider matters from the standpoint of the reasonable man placed in the shoes of these police officers. We have to assume that the behaviour occurs in the presence of such a person, we do not require to consider the likelihood of the remarks actually reaching a person. We agree that context is relevant to that consideration. However, in the present case, the context in which this behaviour took place was one in which the appellant had immediately previously been abusive and threatening to the police officers and causing a disturbance. They had difficulty handcuffing him. They had not succeeded in calming him down completely and he was continuing to be offensive, although his remarks now were largely not directed to them personally. A reasonable person in the shoes of the police officers during the appellant's abusive behaviour in the van would have been aware of this, and also aware of the fact that when they arrived at their destination they would be faced with the task of removing him from the van into the police office. In that context we consider that the sheriff was fully entitled to conclude that this was behaviour which was likely to cause a reasonable person to suffer fear and alarm.

Jolly v HM Advocate

[6] The appellant in this case was detained in a young offenders institution. In preparation for a supervised release order he was interviewed by social workers. During the course of three separate interviews, and in response to questioning by the social workers as to his feelings, the appellant spoke of his intention to seek revenge on his...

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