Law

Criminal Justice and Licensing (Scotland) Act 2010

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. It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.

3. Subsection (1) applies to —

(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and

(b) behaviour consisting of —

(i) a single act, or

(ii) a course of conduct.

4. A person guilty of an offence under subsection (1) is liable —

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

Convention for the Protection of Human Rights and Fundamental Freedoms 1950

Article 7: No punishment without law

1. No one shall be held guilty of any criminal offence on account of any act or omission

which did not constitute a criminal offence under national or international law at the

time when it was committed. Nor shall a heavier penalty be imposed than the one

that was applicable at the time the criminal offence was committed.

2. This Article shall not prejudice the trial and punishment of any person for any act or

omission which, at the time when it was committed, was criminal according to the

general principles of law recognised by civilised nations.

Appeals against conviction of Ewan Paterson v PF Airdrie, David Bow v PF Airdrie and Jamie

Love v PF Stirling (14th August, 2014) citing the appeals of Rooney v Brown (2013) and Jolly v

HMA (2013) http://www.scotcourts.gov.uk/search-judgments/judgment?id=6da6a1a6-8980-69d2b500-

ff0000d74aa7 (copy attached).

Argument

In the appeals against conviction of Ewan Paterson, David Bow and Jamie Love on14th August, 2014, reference was made to two previous cases: Rooney v Brown and Jolly v HMA (both 2013).

In Rooney v Brown, the court refused the appeal on the grounds that:

“[6]...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...”

In Jolly v HMA, it was noted that reference was made by the prosecution to Rooney v Brown:

“...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...”

In their judgement, however, the court stated:

“[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...It must also be established that a reasonable person in that position would have suffered fear or alarm...[The] 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...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.”

In their interpretation of Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, there is thus a clear contradiction between these two judgements. In Rooney v Brown, the principle of an ex post facto determination of criminality is clearly stated. In Jolly v HMA, however, the determination of criminality is contemporaneous with the act, by word or by deed, and the limiting

factor of the 'reasonable person' relegated to the role of assessing, ex post facto, the 'reasonableness' of the claimed offence taken and fear or alarm felt by the victim(s).

In refusing the appeals of Ewan Paterson, David Bow and Jamie Love in 2014, the court endorsed the interpretation of Section 38 of the Criminal Justice and Licensing(Scotland) Act 2010 given in Rooney v Brown, and dismissed that of Jolly v HMA, as follows:

“[20]...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 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...”

[21]...the defence...took its stand on the statement of the law in Jolly v HM...The error in the logic in that case is...clear. Having quoted section 38(1)(a), (b) and (c), Lady Smith says that “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.” In my opinion, the use of the word “accordingly”

is fallacious. Elements (i), (iii) and (iv) of her Ladyship’s formulation reflect paragraphs (a),(b) and (c) of section 38(1); but element (ii) is an element that is simply not in the subsection...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.”

Conclusions

Rooney v Brown, and the unsuccessful appeals against conviction of Ewan Paterson, David Bow and Jamie Love in a judgement basing itself on the logic of Rooney v Brown, make the following points inescapable:

1. Under Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, the determination of whether a crime has been committed in terms of its prescriptions, by word or by deed, can be withdrawn from the objective emotion(s) actually experienced by the victim(s) at the time of the incident and instead based on a subjective projection of what a 'reasonable person' could or would have experienced, ex post facto by a court.

2. Thus, while in every other kind of criminal activity, although guilt is always determined ex post facto by a court, criminality is inherent in and contemporaneous with the act, in cases brought under Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, both guilt and criminality can be determined ex post facto by a court: criminality is no longer contemporaneous with the act.

3. This precedent set, it then becomes logically impossible for a person involved in an incident which later leads to a charge being laid against them under Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 to know, at the time of the incident, whether they are committing a crime or not.

4. This, in turn, breaches the 'no crime without law' precept of natural justice and is illegal in terms of Article 7 of the ECHR, law in Scotland since 23rd May, 1999.

5. It follows that all prosecutions under Section 38 of the Criminal Justice and Licensing

(Scotland) Act 2010 are illegal in terms of Article 7 of the ECHR.