Scottish High Court of Justiciary Decisons

BERNARD ELLIOT v. PROCURATOR FISCAL, GLASGOW [1999] ScotHC 110 (12th May, 1999)

This is the appeal of Bernard George Elliott, who was convicted of a charge of breach of the peace. The charge narrated that he did conduct himself in a disorderly manner, constantly frequent Dunkin Donuts, harass the complainer, an employee there, repeatedly stare at her, repeatedly speak to her, present unwanted gifts to her whereby placing the said complainer in a state of fear and alarm, and commit a breach of the peace. The defence in this case did not dispute any of the material facts which were led on behalf of the Crown, nor did they dispute that in fact the complainer was upset by the appellant's behaviour. The defence argument was that the appellant was unaware that his conduct was upsetting the complainer and therefore, he did not have the necessary mens rea to commit this offence.

The circumstances were that the complainer was 16 years of age and worked as a waitress in Dunkin Donuts. She was startled one day when the appellant, who was a complete stranger to her, asked her if she had a boyfriend then asked her if she would go out with him. She refused the invitation and this episode shocked and embarrassed her. It should be said that the appellant is 46 years of age. From that time onwards until the appellant was ultimately detained in the premises, the complainer was aware of the appellant several times each week staring and following her with his eyes everywhere she went. He did not behave himself in that way towards any other employees in the premises. Some weeks after the appellant first spoke to her, he approached her and asked her to accept what he said was book of poetry and despite being pressed to do so, she declined to accept this offer. On two subsequent occasions there were delivered to her place of work a box containing a rose which she assumed came from the appellant and she could think of no one else who would be likely to send such a thing to her place of work. The situation was eventually reported to the police and they came on a subsequent occasion when the appellant was on the premises. The corroboration of this matter came from the complainer's supervisor, who said that the complainer told him about the appellant's behaviour and that she was flustered and upset by it. He observed the appellant constantly following the complainer with his eyes and he was present at the time when the book of poetry was offered. On that occasion, he saw the complainer becoming very red and flustered. He went towards her to find out what was happening. He heard her refuse to take the book and the appellant abruptly left the premises on seeing him approach. It was accepted by the complainer that she had never specifically told the appellant that his conduct was unwelcome and that he should stop, and the evidence of the supervisor was that he asked the complainer if she wanted him to have a word with the appellant and she said she did not. Accordingly, the appellant was never told specifically that his conduct was unwelcome. When cautioned and charged with breach of the peace by the police, he replied "I am innocent of it, I have not harmed or harassed anyone intentionally". He also stated that if had been told not to return to the premises, he would not have done so.

Mr Brown, on the appellant's behalf today, has argued that there is insufficient evidence to justify the conclusion that the appellant's conduct was likely to cause fear and alarm although, of course, he accepted that in fact, fear and alarm was caused. Nevertheless, the test is an objective one and the mere fact that alarm was caused is not in any way conclusive. He referred to Donaldson v Vannet 1998 SCCR 422. At 424B it is said that the Court must apply an objective test to determine whether upon the facts the conduct was likely to cause alarm or fear. If such alarm or fear is actually caused, that may be strong evidence that the conduct meets the test but cannot be conclusive, since the subjective reactions of the alleged victims may vary according to their temperament and thus are merely indicators. Mr Brown stressed that the appellant had been a regular customer before these events started, so this was not the sort of case where he was there solely for the purpose of harassing the complainer. When he was told by the police that his attentions were unwelcome, he did not return to the premises and there has been no question of any further contact with the complainer. As he told the police, if he had been told not to return, he would not have done so. Mr Brown therefore submitted that in the absence of any finding that he was ever warned about his behaviour there was insufficient evidence.

Looking at the Sheriff's findings and reasons, we are satisfied that the Sheriff applied the correct test, namely an objective test, and he did not proceed solely on the basis that in fact the complainer was put into a state of fear and alarm. He has considered whether the appellant's conduct was such as would be likely to cause such fear and alarm, and accordingly there is no question of the Sheriff having misdirected himself. The question therefore is whether on the facts he would be entitled to come to that conclusion. In this matter, we bear in mind particularly that the Sheriff had the advantage over us of hearing all the evidence in the case including that of the appellant himself, and having heard all the evidence and thus got a flavour of what was actually happening, came to the clear view that on an objective test there was sufficient to justify the conclusion that the appellant's behaviour was likely to cause fear and alarm. Having regard to the nature of the appellant's conduct and the length of time over which it took place, and having regard in particular to the fact that it does appear that when he offered a book of poetry to the complainer and when the supervisor approached, he made an abrupt departure, we are satisfied that the Sheriff was entitled to take the view that the appellant must have been aware that his intentions were unwelcome. In these circumstances, he must equally have been aware that if he continued with his attentions, this would be likely to cause fear and alarm. In these circumstances we are satisfied that there was sufficient evidence to justify the Sheriff's conclusion and accordingly, we shall answer question 1 in the negative, question 2 in the affirmative, and refuse the appeal.

AUD