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Cite as: [2005] ScotHC HCJAC_73, [2005] HCJAC 73

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Martin v. Procurator Fiscal [2005] ScotHC HCJAC_73 (17 June 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Johnston

Lord Mackay of Drumadoon

C.G.B. Nicholson, Q.C.

[2005HCJAC73]

Appeal No: XJ501/05

OPINION OF THE COURT

delivered by LORD JOHNSTON

STATED CASE

in causa

ALAN MARTIN

Appellant;

against

PROCURATOR FISCAL, Dundee

Respondent:

_______

Appellant: Keenan, Solicitor Advocate; Gilfedder & McInnes

Respondent: McKenzie; Crown Agent

17 June 2005

[1] The accused was charged with a contravention of section 50A(1)(b) of the Criminal Law (Consolidation)(Scotland) Act 1995. After amendment allowed at the closure of the Crown case, the charge was in the following terms:

"On 17 March 2004 at Bobby Cox Stand, Dens Park Football Stadium, Sandeman Street, Dundee you ... did act in a racially aggravated manner which caused or was intended to cause alarm or distress to a person namely Scott Alexander McBurney born 01.12.1989, c/o Tayside Police in respect that you did shout racial remarks at football players of African racial origin and swear".

[2] The relevant legislation is as follows:

"50A (1) A person is guilty of an offence under this section if he-

(a) pursues a racially-aggravated course of conduct which amounts to

harassment of a person and -

(i) is intended to amount to harassment of that person; or

(ii) occurs in circumstances where it would appear to a reasonable

person that it would amount to harassment of that person; or

(b) acts in a manner which is racially aggravated and which causes, or is

intended to cause, a person alarm or distress.

(2) For the purposes of this section a course of conduct or an action is racially aggravated if-

(a) immediately before, during or immediately after carrying out the

course of conduct or action the offender evinces towards the person affected malice and ill-will based on that person's membership (or presumed membership) of a racial group; or

(b) the course of conduct or action is motivated (wholly or partly) by malice and ill-will based towards members of a racial group based on their membership of that group."

[3] The sheriff found the following facts admitted or proved:

"1. During the evening of Wednesday 17 March 2004 there was a football match at Dens Park Football Stadium, Sandeman Street, Dundee involving Dundee and Celtic Football Clubs.

2. The Appellant and Scott Alexander McBurney were both seated in the West Enclosure otherwise known as The Bobby Cox Stand. Both had season tickets for their seats and were supporters of Dundee Football Club. They were seated in close proximity and only two or three seats apart.

3. There were two players playing for Celtic who were black and of African origin.

4. During the first half of the match Scott Alexander McBurney saw and heard the Appellant shout towards these players 'black bastards' and 'you suck bananas', as well as making imitation monkey sounds. This was heard on four or five occasions during the first half.

5. Scott Alexander McBurney was so offended, upset and distressed, by what he saw and heard that at half time he reported the Appellant to a police officer, Police Constable Graeme McKenna. During the second half of the match Scott Alexander McBurney heard the Appellant shout the same racial remarks as had been heard during the first half.

6. Following the report by Scott Alexander McBurney, PC Graeme McKenna observed the Appellant during the second half of the match and heard him shout and swear towards Celtic players including the phrase 'you suck bananas'. He also heard him shout the word "baboon'.

7. Scott Alexander McBurney was caused alarm and distress by the words and actions of the Appellant.

8. The acts of the Appellant were racially aggravated and were intended to cause alarm or distress to the two black players playing for Celtic Football Club."

[4] The appellant was convicted after trial and has appealed against his conviction by way of stated case. In presenting the appeal, Mr. Keenan, Solicitor Advocate for the appellant, did not attempt to deny that on the facts found the language used by the appellant had constituted racial abuse nor that the schoolboy, named in the complaint, was likely to have been alarmed or distressed by that abuse. In essence Mr Keenan did not dispute findings in fact 7 and 8 by the sheriff. Nor did Mr. Keenan suggest that the amendment of the charge by the Crown, involving the deletion of the name of a particular footballer from the charge, affected the issue as to the correct construction of section 50A(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995, which he sought to raise in the appeal.

[5] Mr Keenan's basic submission was that properly construed the provisions of section 50A (1) (b) are aimed at racially aggravated conduct, including racial abuse, directed against a particular person, where it caused actual distress to that person or was intended to do so. Accordingly, it was not relevant to aver in a charge libelling a contravention of section 50A (1)(b) that the victim of the racial abuse was a person other than the person(s) towards whom the racial abuse had been directed. The racial abuse in this case, as averred and proved in evidence, had been directed against footballers of African racial origin on the field of play. The fact that a spectator in the vicinity of the appellant, when he had uttered the racial abuse, had been named in the charge, and had been proved in evidence, as having been caused alarm and distress on account of the racial abuse uttered by the accused, did not mean that the terms of the charge conformed with the provision of section 50A (1)(b).

[6] The advocate depute indicated that the Crown's position was that, having regard to the reference to 'a person' in subsection (1)(b), of section 50A, in contrast to the use of the term 'the person' in subsection 2 of the section, the charge was relevant and that it was appropriate that anyone who had been caused alarm and distress by racially aggravated conduct on the part of an accused could be averred to be the victim of that conduct, Thus a charge under section 50A (1)(b) could embrace not only footballers at whom the racial abuse had been directed, but also spectators, such as the person named in the complaint, who had been liable to have heard and suffered alarm and distress by reason of racial abuse uttered by an accused.

[7] It has to be noted that this legislation was considered recently by this court in Anderson v. Griffiths 2005 S.C.C.R. 44. However, we note that the decision in that appeal turned upon the absence of findings of fact as regards the appellant's intentions. Accordingly, the case can be regarded as having been decided upon its own facts, albeit the question of construction that arises in the appeal before us was mentioned during the submissions in Anderson. We therefore consider that the question of statutory construction that arises for decision in the present appeal is an open one, to be determined by us de novo.

[8] In our opinion, it is very important in approaching this matter to read subsections (1) and (2) of section 50A (1)(b) together. Subsection (1)(b) requires the conduct in question to be racially aggravated and to cause or to be intended to cause alarm and distress to a person. It immediately has to be recognised that looked at in isolation subsection (1)(b) appears to be directed to the situation in which any person has been affected by racially aggravated conduct on the part of an accused, whether or not that person was the person at whom the accused had targeted his racially aggravated conduct or action. Were that to be the correct construction of subsection 1(b), that would obviously include the schoolboy spectator referred to in the present complaint. However, the matter does not end there. Subsection (2)(a), quite apart from its other elements, contains the phrase "evinces towards the person affected". In our opinion, the reference in that subsection to "the person affected " must be intended to be a reference to the same person who has been identified, in terms of subsection (1)(b), as a person caused, or intended to be caused, alarm and distress. In practical terms, this means that when the conduct of an accused causes or is intended to cause alarm and distress to a particular person, which is what subsection 1 (b) requires before there can be a conviction, the characteristics of the conduct of the accused, which are required, in terms of subsection (2)(a), must relate to the same person. Thus, in the present case, the abuse having been directed at footballers of African racial origin, it is only they who could be considered to be the complainers or victims in the charge. The involvement in the charge of the schoolboy spectator as being the complainer or victim is outwith the scope of the provisions of section 50A (1)(b). Accordingly the charge on which the appellant was convicted is irrelevant and should have been treated as such, in advance of any evidence being led. That does not mean, however, that the point could not be taken at this stage of the proceedings. In our opinion, it was not competent for the Sheriff to convict the appellant of the charge, as amended.

[9] It is also important to note that in subsection (1)(b) there is an alternative phrase "intended to cause". That does not mean to our mind that the intended victim of the abuse need hear it, so long as the evidence yields the view that the accused intended to cause alarm or distress to the intended victim. We, therefore, construe subsection (1)(a) as meaning either causing alarm or distress or attempting to do so, but it not being necessary in the latter context that anything is achieved.

[10] In the circumstances of the present case, however, we are of the view that the charge, in the terms it was in at the close of the Crown case, was irrelevant and this conviction must therefore be quashed.

[11] We recognise that this construction of section 50A (1) and (2) may inhibit, to some extent, the use of those provisions in the prosecution of conduct other than specific abuse aimed at a specific person or persons. We are, however, fortified that our approach to construction is correct by the provisions of section 96 of the Crime and Disorder Act 1998, which enable a charge alleging that the common law crime of breach of the peace had been committed to specify that the offence had been racially aggravated. Such a charge would have covered the facts established in the present case. Furthermore, in this case, we can apply paragraph 14 of Schedule 3 to the Criminal Procedure (Scotland) Act 1995 and section 183 of the 1995 Act, which enable us having quashed a conviction under statute, to substitute a verdict of guilty of a common law crime, if such a conviction is supported by the findings in fact made by the sheriff.

[12] Mr. Keenan did not seriously dispute that the conduct of his client in this case amounted to a breach of the peace. We accept that position. We will accordingly substitute, for the conviction under section 50A(1), a conviction of a breach of the peace that was racially aggravated, within the meaning of section 96 of the 1998 Act. In our opinion, such a conviction is warranted by the findings of fact made by the sheriff, in particular findings in fact 3, 4, 5, 6 and 8 and the fact that the terms of the complaint on which the appellant stood trial alleged that he had acted in a racially aggravated manner.

[13] That being so this appeal will have to be continued for reconsideration of the appropriate sentence. The appellant will require to attend that further hearing.