I find myself posting again after another appeal with an interesting point which is, unfortunately, unlikely to be reported. Although, conceded by the Crown and therefore not fully aired before the appeal court, the decision centred upon the test set out in Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 and in particular the first part of that test; whether the appellant had behaved in a threatening or abusive manner.
The appellant faced a single charge under Section 38(1). He was convicted of the charge after a summary trial before a Sheriff. Put shortly, the evidence was that the complainer, a swimming pool attendant, was asked to help the appellant find his belongings. Whilst in the changing room the appellant made a remark to the attendant. The remark was neither abusive nor insulting. It was, however, entirely inappropriate. The attendant left. The appellant thereafter presented himself at the staff room door, looking for the complainer claiming that he had lost his trainers. The pool attendant was panicked and embarrassed by the conduct of the appellant.
The appellant was convicted. The Sheriff found that (1) the appellants behaviour was threatening and (2) that it was likely to cause the reasonable person fear and alarm.
Section 38(1) is in the following terms: –
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.
The most recent case law¹ has centred upon the second part of the test – the objective test that the behaviour must be likely to cause the reasonable person to suffer fear or alarm. However, the first part of the test makes clear that there must be behaviour which is “threatening” or “abusive.” In the current appellant’s case, although inappropriate and embarrassing, the behaviour was neither threatening or abusive. The appeal was granted.
One must therefore be careful to consider whether the Crown have lead evidence of behaviour that can properly be described as threatening or abusive. If the behaviour does not reach that threshold, then the first part of the test has not been met and a submission of no case to answer ought to be sustained.
If, on the other hand, the behaviour can be construed as threatening or abusive, was it likely to cause a reasonable person to suffer fear or alarm? This objective test is not concerned with whether actual fear or alarm resulted. The question is whether in the circumstances the hypothetical reasonable person would likely suffer fear and alarm as a result of the behaviour.
Finally, the court must consider the question of mens rea. Was the behaviour intended to cause fear or alarm or was it reckless as to whether it would cause fear and alarm? In the present appeal, the Sheriff had not addressed this final part of the test in the findings-in-fact. In my view, the appeal would have been successful on that ground too.
¹ See Paterson v PF Airdrie  HCJAC 87 a full bench decision on the test set out in Section 38(1).