Appeals Against Conviction By Ewan Paterson And Others Against Pf Airdrie

CourtHigh Court of Justiciary
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
Published date15 August 2014


[2014] HCJAC 87

Lord Justice General

Lord Justice Clerk

Lord Brodie

Lord Drummond Young

Lady Clark of Calton

Appeal No: XJ1025/13





In the


















For first appellant: C M Mitchell, Hay; John Pryde & Co, Edinburgh

For second appellant: Mackintosh, Ross; John Pryde & Co, Edinburgh

For third appellant: C M Mitchell, Green; Capital Defence Lawyers, Edinburgh

For the Crown: Fairley QC AD; Crown Agent

14 August 2014


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

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.”

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

Rooney v Brown 2013 SCCR 334

[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 section 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 delivered by Lady Dorrian:

“[6] 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 HMA 2013 SCCR 511

[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 ex-girlfriend, to harm her and her family and to seek revenge on anyone who hurt him. His comments were reported to the police. He was then charged with a contravention of section 38(1). The sheriff held that the evidence of the interviews was inadmissible.

[7] This court upheld that decision on the view that it was contrary to all principles of fairness to allow evidence of what the appellant said at such interviews to found a prosecution under section 38(1) (at para [3]). The court also considered a submission by the Crown that for a contravention of section 38(1) it was not necessary that the threats libelled were uttered to the persons who were the subject of the threats. It was enough that the behaviour was such as would have caused a reasonable person to suffer fear and alarm (Rooney v HM Adv, supra). On that point, Lady Smith, giving the Opinion of the Court, quoted section 38(1) (supra) and continued as follows:

[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 HM 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.”

The present appeals

Ewan Paterson v PF Airdrie

[8] On 27 September 2013, at Airdrie sheriff court, this appellant was convicted of the following charge:

“On 25 May 2013 at Lochinvar Road, Cumbernauld, you EWAN PATERSON 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 shout and swear and challenge police officers to a fight; CONTRARY to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.”

[9] Two police officers said that the appellant shouted and swore at them and acted in a threatening and aggressive manner before his arrest and thereafter when he was in the police vehicle. There was no evidence that the police officers suffered fear or alarm. One of them said that he was not annoyed by the appellant’s behaviour and that that was simply a matter to be dealt with. The sheriff refused a submission that because there was no evidence that anyone had been alarmed, there was no case to answer. He convicted the appellant. He considered that in circumstances where the behaviour occurred in a public residential area, known as a problem area for youth disorder, where the appellant was already out of control and where because of his behaviour there was the potential for further disorder to erupt, there was sufficient evidence that his behaviour would be likely to cause a reasonable person to suffer fear and alarm. Moreover, it could be inferred from the evidence that the appellant either intended to cause fear and alarm or was reckless as to whether his behaviour would have that effect. The sheriff distinguished Jolly v HM Adv (supra) on its facts.

David Bow v PF Airdrie

[10] On 25 October 2013 at Airdrie sheriff court this appellant was convicted of the following charge:

“On 8 May 2013 at Langmuirhead Road, Auchinloch you DAVID BOW did behave in a threating or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did repeatedly...

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