Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC25

HCA/2014-005402-XJ

Lord Brodie

Lord Drummond Young

Sheriff Principal D C W Pyle

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in

APPEAL AGAINST CONVICTION

by

FRANCIS BARTKUS

Appellant;

against

PROCURATOR FISCAL, GLASGOW

Respondent:

Appellant:  Collins, solicitor advocate;  Capital Defence Lawyers

Respondent:   A Brown, QC, AD ; Crown Agent

11 February 2015

 [1]       On 16 October 2014 the appellant was convicted at Glasgow Sheriff Court of a charge that between 9 February 2014 and 26 February 2014 at a shop known as  Boux Avenue, Silverburn Shopping Centre, Barrhead Road, Glasgow, he conducted himself in a disorderly manner, asked a member of staff inappropriate questions relating to women’s underwear,

asked another member of staff whether she wore children’s clothing while staring at her breast, placed members of staff in alarm by such conduct and committed a breach of the peace.  During the trial a submission was made by the defence under section 160 of the Criminal Procedure (Scotland) Act 1995 that the Crown had failed to lead evidence sufficient in law to justify a conviction of the offence libelled.  The sheriff repelled that submission.  The appellant has appealed against his conviction, and the sheriff has prepared a stated case.  The critical question in the stated case is whether the sheriff erred in law in convicting the appellant of a breach of the peace.  A further question, as to whether he erred in refusing the submission under section 160, was not argued by the appellant.

[2]        The important findings in fact in the stated case are as follows.  The shop mentioned in the charge, Boux Avenue, is a retailer of lingerie and women’s underwear.  On 9 February 2014 at about 2pm a sales advisor, GF, was working in the premises.  The appellant entered the store and sought assistance from her with a view to making some kind of purchase.  He explained that he liked to dress in women’s clothing.  After leaving GF he viewed certain items and then returned to her and engaged in further conversation for about 15 minutes, inquiring about sizes, a loyalty card, and trying on clothing.  He asked GF if she wore children’s clothing.  Such a question was an unusual one to ask of a sales advisor, and inappropriate; it made GF feel uncomfortable.  GF attempted to move away from the appellant, but he continued to follow her about and engage her in conversation, telling her what size of women’s clothing he wore and stating that in his house when working on the computer he wore a skirt and fishnet stockings.  About 30 minutes after he entered the premises the appellant left without having made any purchase after telling GF that he was going to get lunch.  The appellant did not make eye contact with GF during the time when he was in the store but looked at her breast area.  At first she thought that his remarks might have been a joke and inappropriate, but later that day felt alarmed by his conduct.

[3]        On 11 February 2014 at approximately noon KH, a team manager, was at work in the store.  She was approached by the appellant who asked whether a store loyalty card could be obtained, and accompanied her to the computer at the till inside the premises.  KH started to obtain details to enable a temporary card to be issued, and the appellant engaged in conversation about other matters.  He mentioned that he had recently attended a wedding reception where the groom had removed the bride’s underwear.  The conversation made KH uncomfortable, as it had nothing to do with the loyalty card details and was in her opinion inappropriate conversation in all the circumstances.  She tried to return the conversation to the loyalty card, but the appellant continued to discuss the wedding.  Thereafter she left for her lunch.  The conversation had made her feel uncomfortable, and this continued when she returned to the store and found that the appellant was still present.

[4]        In the week before 14 February 2014 at about 12.30pm NH started work.  The appellant was present in the store and walking around looking at goods on display.  He approached NH and commented that there were lovely products in the store.  She considered that he stood too close to her and was too forward; that made her uncomfortable.  He stated that he wanted to buy products from the store to wear himself.  He tried to start a discussion regarding dresses, dress sizes and shoes, and asked NH where her shoes had been bought.  She thought that the conversation, which lasted some time, was inappropriate.  She felt uncomfortable as a result, and because the appellant during the conversation did not make eye contact with at any time.

[5]        On 4 February 2014 another employee, LB, was at work in the store.  She was discussing stock levels with her manager.  She was holding a pair of ladies’ pyjamas when the appellant approached from the rear and came close to her.  He whispered that he liked the pyjamas, and would like to wear them.  He came too close to LB, and was somewhat overbearing in manner.  LB felt that his remark and conduct were out of order.  She replaced the pyjamas on a rail and proceeded to compile a list of items to be obtained from the stock room.  The appellant continued to follow her around the store and made comments about the kind of women’s clothing that he liked to wear.  He pointed at a display of pants and made numerous comments about them.  LB felt uncomfortable at being followed and the comments that were made.  She felt that the appellant was trying to provoke a reaction from her, and she felt annoyed by him.  The appellant continued to follow her and make comments for between 30 and 45 minutes, but made no purchase.  LB felt uncomfortable and was concerned about going out for her lunch in the shopping centre in case she met the appellant.

[6]        On the basis of the foregoing findings of fact the sheriff found the appellant guilty of a breach of the peace at common law.  In explaining his decision, he states that he found each of the Crown witnesses to be credible and reliable; each gave evidence in a measured fashion without exaggeration.  In evidence the appellant had denied that he had made any comments to GF about children’s clothing and denied staring at her.  He accepted that he had mentioned a wedding, but not that he had talked about the bride’s underwear.  The sheriff nevertheless considered that the evidence of the witnesses should be accepted; none had any reason to add prejudicial comments, and there was no hint of that in their evidence.  In cross-examination there was an underlying thread that the witnesses might have been prejudiced towards a transgender person, but the sheriff rejected that suggestion.  He accepted from the evidence of LB that a reaction might have been sought by the appellant.  As to the appellant’s evidence, the sheriff found that he was being selective in his recollection, and he found him to be neither credible nor reliable.  Nothing that he said created any reasonable doubt in the sheriff’s mind.

[7]        In relation to corroboration, the sheriff concluded, in dealing with the submission under section 160 of the Criminal Procedure (Scotland) Act, that the evidence showed conduct on four separate occasions within a five day period, in the same place and of a similar type; in each case inappropriate remarks were made and members of staff were followed around, with little or no propensity to purchase goods.  That amounted to a course of criminal conduct over a period of time, and in relation to the course of conduct the evidence of each witness corroborated the others.  As we have noted, it is no longer maintained that there was an insufficiency of evidence.

[8]        It was further submitted to the sheriff that the appellant’s conduct did not amount to a breach of the peace.  The conduct had been described as making witnesses uncomfortable and uneasy, and was inappropriate, but it did not result in a call to the police.  The sheriff nevertheless held that a breach of the peace had been committed.  GF had been alarmed, and LB had concerns about going out into the shopping centre after the incident involving her.  Conduct of that nature fell within the test established in Smith v Donnelly, 2002 JC 65; 2001 SCCR 800.  A male’s conducting himself in the way alleged on four separate occasions at an open-fronted store could easily have caused alarm to fellow shoppers or those passing by.  The appellant had entered the shop and stayed for a period of time beyond the normal, while making inappropriate comments, asking wholly inappropriate questions, and following young female members of staff around at their place of work.  No evidence of any purchase had been produced, and there was an indication that the appellant had been seeking a reaction.  The sheriff considered that such conduct would be sufficient to be genuinely alarming and disturbing to a reasonable person, as it was to the witnesses.

[9]        The relevant test is, as the sheriff indicated, set out by Lord Coulsfield in Smith v Donnelly, supra, at paragraphs [17]-[18].  In that passage it is made clear that something substantially greater than mere irritation is involved:

“What is required… is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person” (paragraph [17]).

In the present case the sheriff applied that test, and concluded that the appellant’s conduct was of sufficient gravity to be “genuinely alarming and disturbing to a reasonable person”, as it was to the four Crown witnesses.  That is an application of the proper test.  The sheriff had the advantage of hearing and observing those witnesses as they gave evidence; for that reason his assessment of the appellant’s conduct should not be interfered with lightly.  Apart from that consideration, however, it appears to us that the conduct described by the sheriff can properly be described as genuinely alarming and disturbing, both to the four employees in the shop and to any reasonable person.  It went well beyond conduct that was merely irritating or uncomfortable.  On four separate occasions over a period of about five days the appellant entered a shop selling women’s underwear and followed and spoke to young female employees without any intention of purchasing goods, acting towards them in a manner that was plainly inappropriate.  When that conduct is considered objectively, we are of opinion that it could readily cause disturbance and alarm in a reasonable person. 

[10]      It can be said that the conduct involved in the present case is at the lower end of conduct amounting to a breach of the peace; that was expressly conceded by the Crown.  Nevertheless that is a matter that can be reflected in sentence.  For the foregoing reasons we will answer the second question in the stated case, whether the sheriff erred in law in convicting the appellant of a breach of the peace, in the negative.  As already mentioned, the first question is no longer live.