APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Menzies Lady Dorrian Lord Tyre	[2013] HCJAC 57 Appeal No: XJ33/13   OPINION OF THE COURT   delivered by LADY DORRIAN   in   STATED CASE   by   IAIN ROONEY   Appellant;   against   PROCURATOR FISCAL, STIRLING   Respondent:   _______

 

Appellant: Collins, Sol AD; Capital Defence Lawyers

Respondent: Brodie QC AD; Crown Agent

 

14 May 2013

 

[1] The accused went to trial on a complaint containing two charges. The first was a charge of breach of the peace at Pearl Street, Callander by shouting, swearing and threatening to kill police officers. The second, at the same locus and in the course of a journey by van to Stirling police office, was a breach of s 38(1) of the Criminal Justice (Scotland) Act 2010 by shouting, swearing and uttering sectarian and racial threats of violence, which latter offence was said to be aggravated by racial and religious prejudice.

[2] On the day in question, police officers attended the locus for an unconnected reason. In the garden there they found the appellant gesticulating with his arms, swearing, threatening to take a knife and stab the officers and threatening to kill them. Having failed to calm down when requested to do so, he was arrested for breach of the peace, handcuffed, and placed in a cage in the rear of a police van. It was initially difficult to place the handcuffs on him, because he tensed his body. During the journey to Stirling the sheriff records that he "was repeatedly abusive towards the police officers. He was also shouting remarks such as "Shoot Gerry Adams", "Fuck Bobby Sands", "Kill all Paki bastards", "Kill all Fenians". The appellant was also whistling or singing sectarian songs. The appellant repeatedly verbally abused the two police officers in the police van. In a raised voice he ranted the said sectarian and racial threats of violence. The sheriff also records that the police officers took the threats to them seriously, because of their knowledge of the appellant. This matter was not further explored in evidence, although it subsequently became apparent that the appellant had convictions for offences of disorder and breaches of the Police (Scotland) Act 1967. The sheriff further records that although the police officers found the appellant's sectarian and racist comments offensive, there was no evidence that they themselves were fearful or alarmed. They were aware that the accused was intellectually challenged. By the time they arrived at Stirling the appellant had calmed down.

[3] On the first charge the accused was convicted of making threats to police officers; on the second he was convicted as libelled. An appeal was taken against the conviction on the second charge. The sheriff was satisfied that the remarks being shouted by the appellant were likely to cause a reasonable person to suffer fear or alarm. It did not matter that the officers were not themselves in a state of fear or alarm. Other officers without the knowledge of the appellant's limited intellectual range might have been so, as might any member of the public who happened to overhear him.

[4] For the appellant it was argued that viewed in context the conduct did not support a finding that it was likely to cause a reasonable person to suffer fear and alarm. He was securely held within a cage in the police van, no-one other than the officers was present, the remarks were not directed at them personally and they themselves were not placed in a state of fear or alarm. Whilst it was accepted that the test was an objective one, it was nevertheless one of likelihood, in which one required to consider not only the likelihood that the words would be considered abusive but the likelihood of their reaching a person who might be placed in fear or alarm as a result. The only people who would be likely to be present in this context were police officers. The context was important, and it was not likely that a reasonable person would be placed in a state of fear and alarm by remarks made by someone secured as the appellant was. Had he not calmed down by the time he arrived at the police station, the matter would be more difficult.

[5] For the Crown the Advocate depute submitted that how individual officers, or indeed members of the public, reacted to conduct might be a relevant adminicle of evidence in deciding whether that conduct was likely to cause fear or alarm, but it was not determinative. The test was an objective one. The context in which behaviour was taking place was also a relevant adminicle of evidence, but here a reasonable person would have been aware of the conduct of the appellant prior to being put in the van, and would be aware that he would require to be removed from the van at the end of the journey.

[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 such 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.

[7] Accordingly the appeal will be refused.