Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

 [2015] HCJAC 113

HCA/2015/3188/XJ

Lord Justice Clerk

Lord Brodie

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

GARY MACK

Appellant;

against

PROCURATOR FISCAL, FALKIRK

Respondent:

Applicant: I Paterson, Solicitor Advocate; Paterson Bell (for Martin Johnston & Socha Ltd, Alloa)

Respondent: A Edwards AD; the Crown Agent

18 November 2015

[1]        On 28 May 2015, at the Sheriff Court in Falkirk, the appellant was convicted of a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, with a racial aggravation in terms of section 96 of the Crime and Disorder Act 1998.  The conduct occurred on 23 December 2014 when the appellant had attended as an inpatient in the alcohol detoxification unit of the Forth Valley Royal Hospital.  Whilst lunch was being served, the appellant was heard to refer to Dr Gotz, who was one of the consultant physicians and a German national, as a “Nazi German”.  When he was asked to desist, he refused, and continued to make remarks about Dr Gotz being a “Nazi German” and a “Nazi bastard”.  He was asked to leave.  As he left the dining room he continued to repeat the remarks, becoming louder and louder.

[2]        In support of these facts, the respondent had led two witnesses, both of whom were staff at the hospital.  The first spoke to the remarks being uttered on a number of occasions, and to the appellant raising his voice (“becoming louder and louder”) as he left.  She had considered that his conduct was causing upset and distress to others in the room.  The second witness spoke to the remarks being repeated, to the appellant’s demeanour being angry, although not threatening, and to his comments being nasty and sufficiently disturbing to cause her to feel uneasy for both herself and the patients.  

[3]        The questions raised in the appeal are whether the sheriff was entitled to repel the no case to answer submission, and, if so, whether he was entitled to convict the appellant of the offence under section 38(1) and to find that it was racially aggravated.  It was accepted that, in terms of section 38(1)(a), the conduct was indeed abusive.  The issue was simply whether that conduct would cause a reasonable person to suffer fear or alarm in terms of section 38(1)(b).  The appellant submitted that the sheriff was not entitled to infer from the evidence of the remarks “becoming louder and louder” that the appellant’s conduct amounted to shouting.  In any event, only one witness spoke to these remarks becoming louder.  The sheriff had also erred, it was said, in conflating the racial aggravation of the offence under section 96 with the section 38(1) offence itself (cf Criminal Law (Consolidation) (Scotland) Act 1995, s 50A).  

[4]        The Crown required to establish that the appellant behaved in a threatening or abusive manner, which was likely to cause a reasonable person to suffer fear or alarm, in this case by shouting, swearing and uttering the remarks libelled.  The issue of the likely effect of proved conduct is primarily one for the court of first instance to determine, having heard the evidence of all the circumstances.  In this case, the sheriff was entitled to take the view that the evidence of two Crown witnesses, taken at its highest, was conduct likely to cause alarm on the part of those in the vicinity.  The appellant was in a hospital environment where there were other patients.  He repeated the racial remarks.  He was asked to stop and refused to do so and, on the evidence of one of the witnesses, his voice became louder and louder.  The other witness said he was angry.  In these circumstances, the court is unable to agree that the sheriff erred in refusing to sustain the submission.

[5]        In relation to the inter-relationship of sections 38(1) and 96, the remarks libelled as made in a manner which was abusive and likely to cause alarm also involved a racial element.  In these circumstances again, the court is unable to agree with the submissions that, if they were so libelled, they could not also form the basis of the statutory aggravation.  The questions will be answered in the affirmative and the appeal refused.