APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lord Brodie Sheriff Principal Lockhart	[2011] HCJAC 109 Appeal No: XJ502/11 OPINION OF THE COURT delivered by LORD BONOMY in BILL OF SUSPENSION by EDITH JANE KING Complainer; against PROCURATOR FISCAL, DUNOON Respondent: REFERENCE BY SCOTTISH CRIMINAL CASES REVIEW COMMISSION _______

Appellant: Kennedy; John Pryde & Co., Edinburgh

Respondent: Prentice, Q.C., A.D.

27 October 2011

The History of the Case

[1] On 30 August 2007 the complainer was convicted of racially aggravated conduct in the following terms:

"on 5 November 2006 at 13 Meadows Road, Lochgilphead, Argyll, you EDITH JANE KING did act in a racially aggravated manner which caused or was intended to cause alarm and distress to a person, namely Carla Jackson, born 18 September 1996, c/o Lochgilphead Police Office, in respect that you made racial comments which were derogatory to said Carla Jackson; contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 50A (1)(b) and (5)."

She was admonished. She was represented by Mr Murdanaigum, solicitor, at the trial and has continued to be represented by him throughout the proceedings.

[2] An application was made for a stated case. The case began to go off the rails at that stage. In his stated case the sheriff explained that one of the difficulties he had in stating the case was that the appeal seemed to be based on a misconception of what happened at the trial. Much of the application was based on a suggestion that the procurator fiscal depute had moved to amend the libel in the case to a common law charge of breach of the peace and whether there was sufficient evidence for such a charge. There was, however, no such motion. The motion was to amend the precise terms of the statutory charge. Although reference was made to the "mens rea" requirement for conviction, that was in the context of an amended charge of breach of the peace. The sheriff was, therefore, not invited to address the mens rea requirement for the statutory offence. Nevertheless the sheriff inevitably addressed the question of interpretation of the statute.

[3] The stated case was never finalised. Following a hearing on adjustments on 15 October 2007 it was deemed to be abandoned as the principal stated case was not transmitted to the clerk of justiciary within the relevant time limit of one week stipulated by section 179(9) of the Criminal Procedure (Scotland) Act 1995 ("1995 Act"). Intimation of abandonment was sent by Justiciary Office to the sheriff clerk in Dunoon on 16 January 2008.

[4] An application for an extension of time in which to lodge the principal stated case was presented to the High Court on 28 August 2008. In the application it was explained that Mr Murdanaigum had suffered a heart attack in September 2007 and had not returned to work until March 2008. That may well explain the failure to deal with the stated case properly. In that application it was accepted that the issue in the case had been wrongly identified in the original application for a stated case. It was proposed to lodge amended grounds of appeal focusing on the absence of evidence of mens rea sufficient to establish the charge under section 50A(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995. The application set out the proposed grounds in considerable detail, and was accompanied by a devolution minute to the effect that were the Lord Advocate to continue to support the conviction she would be acting in a way that was incompatible with the complainer's Convention rights under article 10 of the European Convention of Human Rights. By interlocutor dated 11 September 2008, Lord Carloway refused the application for an extension of time, commenting as follows:

"The proceedings in this case having been concluded in the Sheriff Court over a year ago and the appeal having been deemed abandoned as early as January last, no adequate explanation for the extreme delay is advanced, notwithstanding the reference to agent's illness. Despite the extensive narrative in the application, the basis for any appeal remains obscure. This was a straightforward case which the sheriff resolved satisfactorily."

[5] There matters rested until 2 August 2010 when application was made to the Scottish Criminal Cases Review Commission on behalf of the complainer for review of her conviction. In spite of some concern on the part of the Court about whether due consideration had been given by the Commission to the issues of finality and certainty in deciding that it was in the interests of justice to refer the case in June 2011, the Court resolved not to exercise the power recently conferred upon it to decline to accept the reference. Following procedural discussion it was determined that the appropriate form in which to address the issue was by bill of suspension. The bill was presented expeditiously following upon the court's interlocutor of 12 June 2011 and thereafter the case proceeded quickly to a hearing on 21 September 2011.

[6] The facts are best set out in the terms of the findings made by the sheriff in the draft stated case which were as follows:

"1. On 5^th November 2006, the Appellant, Edith Jane King, spoke to Stuart Jackson on his mobile phone whilst he was at 13 Meadows Road, Lochgilphead.

2 During the course of that telephone conversation, Stuart Jackson called the Appellant a scoot. That is a derogatory term for travelling people.

3. Stuart Jackson's mobile phone was on loudspeaker mode. The loudspeaker had been activated before the Appellant came onto the phone. He did not tell the appellant that he had activated the loudspeaker facility on his mobile phone. The appellant was not aware that this had been anything other than a private conversation with her former partner [sic - Stuart Jackson was the former partner of Edith King's friend, Linda Holdsworth, from whose house the telephone call originated].

4. The appellant, in response to being called a scoot, stated words to the effect that at least her kids knew who their father was and were not a wee black Paki bastard. The appellant did not intend that this remark be audible to Carla Jackson.

5. All of the witnesses who heard the telephone conversation identified the voice as that of the Appellant.

6. This conversation, and these remarks, were heard by Carla Jackson.

7. Carla Jackson's father is of mixed parentage and, as a result, Carla Jackson has olive skin.

8. The uttering of these remarks by the Appellant caused alarm and distress to Carla Jackson, who was upset and crying."

On the strength of these findings the sheriff convicted the complainer in the terms narrated at the outset of this Opinion.

[7] In coming to the conclusion that there may have been a miscarriage of justice and referring the case to the Court, the Commission in their statement of reasons defined the issue as follows:

"48. The Commission considers that whether or not the applicant may have suffered a miscarriage of justice in her conviction under section 50A(1)(b) and (5) of the Criminal Law (Consolidation) (Scotland) Act 1995 depends on the interpretation the Court puts on that section in relation to whether or not it is a strict liability offence. In the applicant's case, it is argued on her behalf that she had no intention to offend the complainer, Carla Jackson, and had no knowledge that the latter was in a position to hear any remark which was made and be offended by it. In these circumstances there was a complete absence of mens rea which is an essential element of the commission of the offence."

The sheriff had put the matter this way in the draft stated case:

"The evidence in this case was in fairly short compass. The four Crown witnesses confirmed the contents of the telephone conversation between the appellant and Stuart Jackson. I was satisfied that the appellant had said the words complained of and had referred to Carla Jackson as a black Paki bastard. I was also satisfied that this caused alarm and distress to Carla Jackson.

The Note of Appeal seems to suggest that because this was a conversation between the appellant and Stuart Jackson, the appellant did not possess the necessary mens rea for a common law breach of the peace. This was not a charge involving a common law breach of the peace. It is suggested that the appellant did not intend to provoke a public disturbance or that she was aware or would reasonably have been expected to be aware (sic) that the complainer might overhear the offending remark. However, the Act makes it clear that if a person acts in a manner which causes alarm to another person that is sufficient. In my opinion, it is of no moment that the appellant was unaware that Carla Jackson would hear what was being said. The fact is that Carla Jackson did hear what was being said and that caused her alarm and distress. That was made perfectly clear in the evidence. This is not a breach of the peace charge. This is a statutory offence and it seems to me clear that the appellant's actions satisfy the definition in the charge. I therefore found the appellant guilty of the amended libel."

[8] From an early stage in the discussion before us it was clear that the choice was not between an offence of strict liability and one involving mens rea, but rather that the issue was what the mens rea requirement was for conviction on the charge. The answer to that question is a matter of statutory construction.

[9] The relevant parts of section 50(A) of the Criminal Law (Consolidation) (Scotland) Act 1995 are these:

"Racially - aggravated harassment

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 towards members of a racial group based on their membership of that group.

... ... .. ...

(6) In this section -

'conduct' includes speech

..................................................................".

While concentration on the terms of section 50A(1)(b) may suggest that alternative bases for conviction are either that conduct "causes" a person alarm or distress or "is intended to cause" a person alarm or distress, thus focusing on the possible contrast between a results-based crime of strict liability and one dependent upon mens rea, that would be to leave out of account the basic requirement that the accused must be shown to act "in a manner which is racially aggravated", and that one of the elements in sub-section (2) must be proved to establish that. In terms of sub-section (2) the accused must be shown to evince towards the complainer malice and ill-will based on the complainer's membership (or presumed membership) of a racial group, or the accused's action must be shown to be "motivated (wholly or partly) by malice and ill-will towards members of a racial group ...". Probably as a result of the confusion created by the terms of the application for a stated case, the sheriff did not engage in any detailed analysis of the mens rea requirement for the offence. He contented himself by saying:

"I was satisfied that the appellant had said the words complained of and had referred to Carla Jackson as a black Paki bastard. I was also satisfied that this caused alarm and distress to Carla Jackson."

The Submissions
[10] In a bill of suspension extending to 18 pages, drafted as an argument or submission rather than in the traditional style of a bill stating essential facts and making concise propositions of law, Mr Kennedy, counsel for the complainer, made a series of repetitive submissions in which there were essentially three propositions. Firstly, under reference to Sweet v Parsley [1970] AC 132, R v K (Age of Consent: Reasonable Belief) [2001] UKHL 41, [2002] 1 AC 462, [2002] 3 All ER 897, [2002] 1 Cr App R 13, H v Griffiths [2009] HCJAC 15, 2009 SCCR 312 and Gordon, The Criminal Law of Scotland, 3^rd Edition, Vol. 1, at paragraph 8.06, there is a presumption that mens rea is an essential ingredient of a statutory provision unless Parliament has indicated, by express words or necessary implication, that it is not. Secondly, under reference to Anderson v Griffiths 2005 JC 169, 2005 SCCR 41, 2005 SLT 86, and Martin v Howdle [2005] HCJAC 73, 2006 JC 35, 2005 SCCR 504 (sub. nom. Martin v Bott), the mens rea requirement for conviction under section 50A(1)(b) is the intention to cause a person alarm or distress. And thirdly, the usually disjunctive "or" in (b) should be read as the conjunctive "and", thus requiring that, where actual alarm or distress is relied upon, intention to cause it must also be proved. A person in the position of the complainer, communicating by telephone with someone known to her, had a legitimate expectation of privacy. That could be contrasted with conduct in public. There was also a subsidiary, and largely incomprehensible, submission that the sheriff had failed to make "a sensitive assessment of intent and outcome" as a result of which the justification for criminal sanction had not been convincingly established. That submission was made under reference to Sunday Times v UK (No. 2) 14 EHRR 229, Goodwin v UK 22 EHRR 123, Jersild v Denmark 19 EHRR 1, and Worm v Austria 25 EHRR 454 and appeared to be drawn largely from Reed & Murdoch, A Guide to Human Rights Law in Scotland, 2^nd Edition, 2008, at paragraph 7.44, where the focus was on the application of article 17 of the European Convention on Human Rights in relation to the exercise of rights under article 10 involving racially offensive remarks and hate speech. There were brief ancillary submissions indicating that in some way article 10 and article 17 had been infringed. Although it was difficult to obtain from Mr Kennedy a clear indication of the circumstances in which he contended that an issue of incompatibility arose, it did ultimately appear to depend upon the Court first of all rejecting his proposed interpretation of the statutory provisions, whereupon, we think, the contention would be that section 50A was incompatible with article 10 and infringed article 17. We shall return to that issue after dealing with the question of statutory construction.

[11] For the sake of completeness we record that the bill includes brief submissions in support of the contention that "there has been a breach of the 'reasonable time requirement' in the determination of the complainer's appeal". The bill does not indicate which public authority is said to be responsible for delay. At the outset of the hearing on 21 September that argument was abandoned and the associated devolution minute withdrawn in light of the apparent, albeit belated, recognition by Mr Kennedy that, wherever responsibility for delay lay, it was not at the door of any public authority.

[12] In response the Advocate depute submitted that the statutory provisions contained a mens rea requirement. Proof of acting in a manner which was racially aggravated required evidence that the accused evinced malice and ill-will towards a person based on that person's race or evidence that the action was motivated by malice and ill-will towards members of a racial group. Neither of the Scottish cases cited by Mr Kennedy, in which the interpretation of section 50A(1)(b) was addressed, Anderson v Griffiths and Martin v Howdle, dealt with the issue arising here. It was wrong to suggest that this was an offence of strict liability. The terms of the statute were clear. The sheriff had applied them. The intention of section 50A was clear - to outlaw racially motivated conduct in society. That was the mischief targeted. It was consistent with that purpose that, where alarm and distress were caused to a person by such conduct, the person responsible should be convicted. The suggested distinction between private and public behaviour was a false one. Obviously if remarks about a third party were made between two people in a house, that would not result in alarm or distress and would not generally result in prosecution, thus preserving, if that were thought to be appropriate, the privacy of those involved. On the other hand, making statements on the telephone could, as this case showed, have consequences which the legislature aimed to outlaw.

Discussion
[13] In neither of the two cases in which section 50A(1)(b) was addressed did the issue of mens rea arise in the way in which it arises in the present case. In Anderson v Griffiths the libel was of acting "in a racially aggravated manner which caused or was intended to cause alarm and distress to persons" who were football players on the pitch at the time, calling one a "black bastard" and the other an "asylum seeker". The remarks were inaudible on the pitch. Other spectators seated nearby were upset and disgusted by the remarks. The sheriff convicted the accused of the charge. The findings he made were apposite to a racially aggravated breach of the peace under the Crime and Disorder Act 1998, section 96, rather than an offence under section 50A. In allowing the appeal the Lord Justice Clerk, delivering the Opinion of the Court, said this:

"[14] The sheriff has failed to make findings in fact that are relevant to the essential elements of the section on which the prosecution depends. He does not refer to the section at all. He has also failed to set out the reasoning by which, on his findings, he has convicted the appellant. The decisive consideration in this appeal is that the sheriff has not found in fact that the manner in which the appellant acted was intended to cause alarm or distress to the complainers. In our view, a conclusion to that effect cannot reasonably be inferred from such findings as the sheriff has made, particularly since he has found that the appellant's remarks were inaudible on the field."

Mr Kennedy founds on that as an indication that an essential element for conviction on the charge is intention to cause alarm or distress to the complainers. Since the remarks were inaudible to them, there could never have been a conviction on the basis that the remarks caused "alarm and distress" to them. The only conceivable basis would have been intent to cause them alarm or distress. We therefore do not regard the Lord Justice Clerk's expression of opinion as extending to a case like the present where conviction was sought on the basis of actual alarm and distress. The same distinguishing feature arises in Martin v Howdle. We turn then to consider the proper interpretation of section 50A and its application to the situation where the person who makes a remark does not anticipate that it will be heard by the subject or target of the remark.

[14] We readily accept the first proposition made by Mr Kennedy. We are satisfied that conviction for any offence under section 50A requires mens rea. In our opinion the issue in the case is the nature of the mens rea required. We recognise that that was not the issue identified by the Scottish Criminal Cases Review Commission in referring the matter to us and that it is not the issue identified in the bill. The Commission considers, and the complainer contends, that unless an accused must be shown to have intended to cause alarm and distress to the complainers the offence would be one of an absolute nature including no mens rea requirement whatsoever.

[15] While Sweet v Parsley, R v K, and H v Griffiths referred to in Mr Kennedy's submissions and CC v Ireland and Others [2005] IESC 48, referred to by the Commission, are clear authority for Mr Kennedy's first proposition that there is a presumption in favour of a mens rea requirement, they do not provide material assistance on the question what that requirement is in this case. They each concern knowledge, in Sweet in the context of being concerned in the management of premises, and in the others in the context of sexual offences and belief as to the age of the girl. Neither the position of the landlord subletting premises, in relation to the knowledge of their use, nor the position of a man who believes that he is having intercourse with a consenting adult, can reasonably be compared with a person making a foul-mouthed racist remark about a person in the belief that that person will not hear it. In these cases, standing the landlord's knowledge and the man's belief, there is nothing in the behaviour that could be considered reprehensible, whereas in the latter, even where there is a belief that the remark will not be heard by the subject, there may remain significant elements of the behaviour indicative of evil intent, specifically the malicious expression of ill-will.

[16] In their statement of reasons the Commission also made reference, as did Mr Kennedy to some extent in his submissions, to the series of cases in which the true nature of breach of the peace has been clarified, in particular Smith v Donnelly 2002 JC 65, Paterson v HM Advocate [2008] HCJAC 18, 2008 JC 327, 2008 SCCR 645, Harris (No. 1) v HM Advocate [2009] HCJAC 80, 2009 SCCR 15, 2009 SLT 1078, and Harris (No. 2) v HMA Advocate [2010] HCJAC 102, 2010 SCCR 15. The particular issue dealt with in these cases was the requirement that there should be some impact on public order and the nature of that impact before conduct can amount to breach of the peace. While the clear ratio of the line of authority is that speaking words of an unpleasant or disgusting character exclusively in private cannot constitute the crime of breach of the peace, and that might be seen to have a bearing on the present case, whether it does depends on there being a requirement, for conviction under section 50A, that the conduct complained of should be in public or at least have some public element.

[17] We are not persuaded that there must be a public element to behaviour before it can amount to an offence under section 50A(1)(b). We consider it entirely possible for an accused to be convicted of abusing someone with whom he is alone in the home of one or both, because remarks made could plainly fulfil all the requirements of the section. In such circumstances it may be difficult to prove the offence, but corroboration might well emerge in the form of a later admission by the alleged abuser.

[18] Mr Kennedy founded strongly on the notion that the complainer had a legitimate expectation of privacy in making a phone call. We accept that in general a person communicating by telephone, whether landline or mobile, would generally expect what is said to be heard only by the person to or by whom the call is made. However, it is common knowledge that more than one person can listen into a telephone call by various means, either electronic or physical, for example by having the volume enhanced technologically or simply putting their heads together. Unlike the person who makes a remark to another when they are alone together in an enclosed area, the maker of the remark on the telephone cannot be sure that only one person can hear the conversation or comment. Similarly, two people sitting together in a cinema or other place of public entertainment may quietly whisper comments, which they do not mean to be overheard, but which are overheard by the subject. We can think of no principled basis in law for distinguishing these two situations such as to accord some status of privacy to one that would not apply to the other.

[19] In the end, we are driven to the clear view, from the plain meaning of the language used in section 50A, that it can apply to circumstances in which alarm and distress are caused, albeit the target of the remark was not meant to hear it. The question of conviction arises because the remark is made deliberately with malice and ill-will. That alone imposes a higher test for mens rea than, for example, knowledge in the case of Sweet v Parsley, and belief in R v K. We see no reason to read "or" in section 50A(1)(b) as conjunctive. Indeed if it were to be so read, then of the foul mouthed abuser whose remarks are not heard by the subject targeted, eg. because he is hard of hearing or an ambulance passes with its siren blaring, there could be no conviction. That would, in our opinion, run counter to what does emerge from the Opinion of the Court in the passage quoted above from Anderson v Griffiths. We consider that conviction on the basis of intent alone was envisaged. It was an uncontroversial fact in that case that the remarks were not heard by the subjects targeted. Nevertheless, the court indicated that, if the sheriff had made a finding to the effect that the manner in which the appellant acted was intended to cause alarm or distress to them, the appeal would have failed.

Decision
[20] Although we have come to the conclusion that the sheriff did not err by deciding that it was not necessary to establish that the complainer meant the remark to be heard by the subject of her abuse, that does not finally dispose of the matter. In none of the eight findings in fact referred to at the outset of this Opinion is there any indication of the sheriff's conclusion on the question whether the complainer's conduct evinced towards the subject malice and ill-will based on her membership (or presumed membership) of a racial group or was motivated by malice and ill-will towards members of a racial group based on their membership of that group. Indeed there is no finding in relation to any racial group or the subject's connection therewith. In the absence of some finding on these matters there could be no finding of guilt. For us to try to determine what finding the sheriff would have made in the circumstances would inevitably involve an element of speculation.

[21] In these circumstances we shall pass the bill and suspend the conviction simpliciter.

[22] There is no need for us to address the complainer's case invoking articles 10 and 17 of the European Convention in any detail. It is sufficient if we say this. That argument could only come into play if article 10 was engaged. Article 10(1) reads as follows:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and to impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises."

We do not read that article as applying to and protecting wilfully abusive remarks made for no purpose other than to cause offence. Mr Kennedy was unable to point to any authority to the contrary. In the present case the remark was made in the course of an argument. The very reference to article 10 in the context of this case is an example of the sort of thoughtless reliance upon the Convention that has brought it into disrepute in the minds of many. It is interesting to note that the cases of the European Court of Human Rights relied upon involved quite different issues of a sensitive nature. The case of Sunday Times v UK (No. 2) is the Spycatcher case. Goodwin v UK concerned the rights of a transsexual. Worm v Austria dealt with "exercising prohibited influence on criminal proceedings", better known to us as contempt of court. Jersild v Denmark involved the broadcast of extreme racist opinions and the question whether the compiler of the programme could be convicted for aiding and abetting the subjects of the programme to express their racist views. It is noteworthy that in the case the subjects did not appear to challenge their convictions for racist abuse.

[23] We are satisfied that article 10 is not engaged, since the right protected by it does not extent to the conduct involved in this case.

Postscript
[24] In the event a bill of suspension was probably not the appropriate way to deal with the issue in this case. It would have been possible, and probably more appropriate, to have dealt with it by treating the draft stated case as a finalised case, since it is the absence of certain essential findings that has led to our conclusion that the conviction cannot stand. The question whether the sheriff was entitled to convict could have been answered in the negative and the conviction quashed on that basis. However, when the court is first faced with a reference from the Commission, it can neither be certain that all the issues set out in the statement of reasons will be presented to the court nor that others not envisaged in the statement of reasons will not arise. In a summary case such as this, all that can be done is for the court, when the reference first comes before it, to judge as best it can, on the information presented by parties at that stage, what is the appropriate procedure to adopt.