Scottish High Court of Justiciary Decisons

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 34

HCA/2015-000384-XJ

Lord Brodie

Lady Clark of Calton

 

OPINION OF THE COURT

delivered by LORD BRODIE

in

APPEAL AGAINST SENTENCE

by

RR

Appellant;

against

PROCURATOR FISCAL, ABERDEEN

Respondent:

Appellant:  Findlater; George Mathers & Co Solicitors

Respondent:  McSporran, AD; Crown Agent

31 March 2015

Introduction

[1]        This is an appeal at the instance of RR who was convicted after summary trial before the sheriff at Aberdeen on 22 January 2015 of a charge in the following terms:

“On 30 January 2014 at Bridge Place, Aberdeen you [RR] did behave in a threatening or abusive manner towards [DD] which was likely to cause a reasonable person to suffer fear or alarm in that you did use a racist phrase towards him;

CONTRARY to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010

and it will be proved in terms of section 96 of the Crime and Disorder Act 1998 that the aforesaid offence was racially aggravated.” 

 

The sheriff imposed a fine of £1,000 to be paid at the rate of £50 per month. 

[2]        The appeal is taken against sentence alone.  The ground of appeal is that the sentence imposed was excessive in all the circumstances of the case.

 

The submission for the appellant 

[3]        In presenting the appeal on behalf of the appellant, Mr Findlater submitted that what was described in the sheriff’s report was almost as minor an example of a contravention of section 38 to the Criminal Justice and Licensing (Scotland) Act 2010 as could be imagined.  Particularly when regard was had to the appellant’s circumstances, a fine of £1,000 was clearly excessive.  The appellant was now 22 years of age, she having been 21 at the relevant time.  She had never previously offended and had no outstanding criminal cases.  At the relevant time she had been a holder of a Security Industry Authority licence.  She was currently on maternity leave and in receipt of statutory maternity pay at the rate of about £130 per week.  While Mr Findlater was unable to give precise details, his understanding was that the appellant wished to be able to return to work as a door steward and if she was to do so she required to renew her licence.  That matter was currently pending but her conviction was likely adversely to affect the appellant’s prospects of renewing her licence. 

 

A difficulty

[4]        When coming to consider the submission for the appellant the court found itself in a difficulty, namely that, having regard to the relevant legislation and the evidence led at trial, as reported by the sheriff in her report, it could not understand how the appellant had come to be prosecuted, let alone convicted, in terms of a charge as quoted above.  When applied to for his assistance, the advocate depute who had of course no personal responsibility for the relevant decision-making confessed to puzzlement.  Even with the benefit of the police report, to which he had access, without in any way derogating from the Crown’s determination to take very seriously any incident in which persons are discriminated against or subjected to threats or abuse by reason of their actual or perceived racial origins, he confessed to having difficulty in understanding why it had been thought necessary to prosecute the matter.

[5]        We shall attempt to explain the court’s difficulty. That requires consideration of the relevant statutory provisions, the terms of the charge, and the evidence led in support of the charge, as reported by the sheriff.

 

The statutory provisions

[6]        Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 provides, inter alia, as follows:

“38 Threatening or abusive behaviour

 

(1)     A person (“A”) commits an offence if¾

(a)  A behaves in a threatening or abusive manner,

(b)  the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c)  A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

 

(2)     It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.

 

(3)     Subsection (1) applies to¾

(a)  behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and

(b)  behaviour consisting of¾

(i)   a single act, or

(ii)  a course of conduct.”

 

[7]        Section 96 of the Crime and Disorder Act 1998, as amended by section 25 (1) of the Criminal Justice and Licensing (Scotland) Act 2010, is in the following terms:

“96.¾ Offences racially aggravated.

 

(1)   The provisions of this section shall apply where it is—

(a)   libelled in an indictment; or

(b)   specified in a complaint,

and, in either case, proved that an offence has been racially aggravated.

 

(2)   An offence is racially aggravated for the purposes of this section if—

(a)   at the time of committing the offence, or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim’s membership (or presumed membership) of a racial group; or

(b)   the offence is motivated (wholly or partly) by malice and ill-will towards members of a racial group based on their membership of that group,

and evidence from a single source shall be sufficient evidence to establish, for the purposes of this subsection, that an offence is racially aggravated.

 

(3)   In subsection (2)(a) above—

‘membership’, in relation to a racial group, includes association with members of that group;

‘presumed’ means presumed by the offender.

 

(4)   It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) above whether or not the offender’s malice and ill-will is also based, to any extent, on—

(a)   the fact or presumption that any person or group of persons belongs to any religious group; or

(b)   any other factor not mentioned in that paragraph.

 

(5)   The court must –

   (a) state on conviction that the offence was racially aggravated,

   (b) record the conviction in a way that shows the offence was so aggravated,

   (c) take the aggravation into account in determining the appropriate sentence, and

   (d) state –

(i) where the sentence in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or

(ii) otherwise, the reasons for there being no such difference.

 

(6)   In this section ‘racial group’ means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.”

 

 

The charge

[8]        We were not addressed on the relevancy of the charge and express no concluded view on the matter. We accept that it is neither appropriate nor desirable to require a high degree of specification in a summary complaint. What we have in the present case is an allegation of contravention of section 38 of the 2010 Act by behaving in a threatening or abusive manner. The only further specification is “in that you did use a racist phrase”. Had the libel stopped there, no question as to relevancy would have arisen. There may be difficulty in finding a definition of the word “racist” that is both succinct and precise, but we would accept that the advocate depute was right when he said that in common parlance a “racist phrase” is one that is derogatory of another person by reference to their supposed ethnic or national origin. Therefore, when a prosecutor uses that expression in a complaint his intended meaning will usually be reasonably clear. As we would see it however, matters become more complicated once a complaint avers, as this complaint does, that an offence which is in part constituted by the using of a “racist” phrase, will be proved in terms of section 96 of the Crime and Disorder Act 1998 to have been “racially aggravated”. The definition of “racist” offered by the advocate depute, which would otherwise seem to be reasonably satisfactory becomes more questionable.  Whatever it is that constitutes the offence here it must be something other than what would amount to racial aggravation, as defined by section 96 of the 1998 Act (evincing malice and ill-will based on membership of a racial group).  Otherwise there would be duplication between the offence and the aggravation of the offence.  An aggravation is something additional which makes an offence worse; an offence cannot aggravate itself.

[9]        What we consider to be the possible doubtful relevance of the charge might not have mattered had the evidence led at trial provided a basis for a finding of threatening or abusive behaviour which gave content to the allegation of contravention of section 38 distinct from the behaviour constituted by using a “racist phrase”.  However, the evidence would appear not to have done so. This may have misled the sheriff into losing sight of what was the substantive charge and what was the aggravation, with the result that she conflated the two or otherwise treated what was libelled as an aggravation as if it were the substantive charge.

 

The evidence at trial
[10]      As appears from the sheriff’s report, the circumstances giving rise to the charge, as established by the evidence led at trial, were as follows.  The appellant had been carrying out her duties as a door steward in licensed premises in Aberdeen.  The complainer, DD, was Italian, with a reasonable but not good command of the English language. Nothing is said by the sheriff about his ethnicity, which may therefore be taken to be irrelevant.  Two witnesses, both students at Aberdeen University, heard the appellant speaking to the complainer and both gave evidence to hearing her tell the complainer to get back to his own country.  One of the witnesses spoke to seeing the appellant remove her armband immediately thereafter, saying “I had better take this off”.  The second witness spoke to having heard the appellant say “Go back to your own country” and then seeing her remove her steward’s badge and say “I shouldn’t have said that”.  The witnesses were concerned by what they had heard and approached police officers in the vicinity immediately in order to report the matter. 

[11]      The appellant gave evidence.  She accepted that she had told the complainer to go home, but by that she had meant to the place at which he was living.  Also led for the defence was the head steward on duty and one of the appellant’s colleagues, another Aberdeen University student who worked part-time as a door steward.  The head steward spoke to the appellant having told the complainer to “Fuck off home”.  The appellant’s colleague gave evidence of he having spoken to the complainer and telling him not to take offence.  He explained that the complainer had said “What do you mean ‘go home’ are you being racist?”  The witness had explained to the complainer that he should return to the premises the following day in order to sort the matter out. 

 

The decision to convict

[12]      The sheriff does not disclose in her report what was the decision-making process which led her to convict.  She makes no reference to the complainer having given evidence, and we assume that he did not, but we would take the sheriff to have accepted the evidence of the Crown witnesses to the effect that the appellant had said to someone of apparent Italian nationality that he should go back to his own country.  As was confirmed by the advocate depute by reference to the police report, the remark was said once, it was not repeated, and it was uttered at conversational volume.

[13]      In her report, the sheriff explains that it seemed to her that a relatively high fine required to be imposed.  It was clear from the evidence which the appellant had given and the evidence of the head door steward, that the appellant saw nothing wrong in what she had said or how she had dealt with an obviously foreign patron.  The sheriff took the view that the seriousness of the appellant’s behaviour, being so bad as to attract the attention of bystanders who felt obliged to report the matter to the police, had to be marked.  It was the sheriff’s view that the appellant’s behaviour on the occasion of the incident “had been a blatant breach of good discipline and of the legislation.”

[14]      The sheriff does not specify what she means by “the legislation”. It would seem only reasonable to suppose that she was referring to section 38 of the 2010 Act and section 96 of the 1998 Act, as amended. If so, we do not see that she applied either of these provisions as she was obliged to do, at the points respectively of determining on conviction and explaining sentence.

[15]      We immediately accept that what was said to the complainer by the appellant was rude and offensive, not only offensive to the complainer but also offensive to any other persons hearing the remark, among whom the Crown witnesses may be numbered, who wish that persons from other countries be treated with proper courtesy when they are in Scotland.  However, we had more difficulty in understanding how what the appellant said constituted a contravention of section 38 of the 2010 Act.  When called upon, the advocate depute could not assist. 

[16]      Having charged her with contravention of section 38, it was for the Crown to establish: (a) that the appellant had behaved in a threatening or abusive manner; (b) that the behaviour would be likely to cause a reasonable person to suffer fear or alarm and (c) that the appellant intended by that behaviour to cause fear or alarm or was reckless as to whether the behaviour would cause fear or alarm.  We do not understand upon what basis the sheriff concluded that such a remark, taken in isolation, would be likely to cause a reasonable person to suffer fear and alarm, nor upon what basis it was open to the sheriff to infer that the appellant had intended to cause fear or alarm.  Indeed, the sheriff’s observation that the appellant had seen nothing wrong in what she had done rather pointed away from the appellant having intended to frighten or alarm the complainer.  We are conscious that the sheriff was required to report to this court in the context of what was simply an appeal against sentence. Nevertheless we would have expected her to have explained, albeit briefly, why she felt able to convict and why she took the serious view of the matter that she apparently did. She does not do so. We are grateful to the advocate depute for sharing the contents of the police report. Nothing in that would suggest that the appellant did more than make the one remark to the complainer and that at conversational volume, unaccompanied by any threatening or abusive gesture or action. The absence of anything more in the police report is of course consistent with the absence of anything more in the account of the evidence given by the sheriff. The advocate depute very fairly said that on the information before him he was unable to see how the charge had been made out. The court is in the same position.

[17]      The effect of the insertion of a new sub-section (5) into section 96 of the 1998 by section 25(1) of the 2010 Act is to impose on the court a duty to do a number of things on conviction, and then on sentence, where it has found an offence to be racially aggravated.  The first is to state on conviction that the offence was racially aggravated.  The second is to record the conviction in a way that shows the offence was so aggravated.  We cannot say whether the first of these things was done.  The sheriff makes no reference to this in her report. We are not satisfied that the second was done.  The minute of 22 January 2015 simply records “The court found the accused guilty of charge 1”.  While it is true that charge 1 includes the averment that it will be proved that the offence was racially aggravated, we do not regard the terms of the minute as compliance with the requirement of section 96(5)(b).  It is more difficult to come to a conclusion as to whether the sheriff took racial aggravation into account in determining the appropriate sentence, as she was required to do in terms of section 96(5)(c).  On the one hand, she imposed what we would regard as a heavy fine on a young first-offender of modest means who had been convicted of making a single remark which was not very obviously either frightening or threatening.  On the other, the sheriff makes no reference to having taken this step in making her sentencing decision and, as we have previously indicated, we are left with the suspicion that the terms of the charge may have led the sheriff to conflate the offence and the aggravation with the result that she did not treat them separately, either at the point of deciding on conviction or at the point of deciding on sentence. Certainly, as remarked upon at second sift, to judge from the court minute and the sheriff’s report, she has not complied with the section 96(5)(d) duty to explain how the sentence was attributed as between offence and aggravation.

 

Disposal
[18]      Mr Findlater’s initial submission was that the sentence imposed by the sheriff should be quashed and substituted with an admonition, as provided for by section 246(1) of the Criminal Procedure (Scotland) Act 1995.  As the discussion before the court progressed, recognising that he had not sought leave to appeal conviction, Mr Findlater moved for an extension of time within which to do so.  We refused that application.  It came very late in the day.  No reason was given for that lateness, other than what might be implied from the circumstances in which the application was made.  We were not advised of any irremediable prejudice to the appellant following upon her having a conviction.  A purpose of our giving our reasons in writing is that they should be available to the appellant when addressing any issues arising in relation to her employment or her holding any necessary license.

[19]      The advocate depute drew the court’s attention to the provisions of section 246(3) of the 1995 Act which allow the court absolutely to discharge a person charged before a court of summary jurisdiction.  The difficulty about that course, as Mr Findlater pointed out, is that it applies where the court is satisfied that the accused committed the offence charged.  That was not a position that he wished the court to adopt.

[20]      In the circumstances the court found its available options to be limited.  As initially invited to do by Mr Findlater we shall quash the sentence imposed by the sheriff and substitute an admonition.