Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 66

HCA/2016/6/XC

Lord Justice General

Lady Paton

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

NOTE OF APPEAL AGAINST CONVICTION

by

EDWARD STEPHEN McBRIDE (aka GUY RICHIE)

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: S Collins, Solicitor Advocate; Collins & Co (for McGeechan & Co, Paisley)

Respondent: Erroch AD; the Crown Agent

3 August 2016

Introduction

[1]        On 2 December 2015, at the sheriff court in Paisley, the appellant was convicted of four charges, the first two being common law breaches of the peace and the second two being contraventions of section 39 of the Criminal Justice and Licensing (Scotland) Act 2010 (stalking).  The appellant had several convictions from the courts in England for harassment.  The sheriff imposed a sentence of 2 years imprisonment on each charge to run concurrently, together with a Supervised Release Order.    

The evidence
[2]        Charge 1 involved a 64 year old art teacher, who was a stranger to the appellant.  In August 2007, when she was walking to a local shop, she saw the appellant standing at a wall.  He asked if she was a model and followed her, talking to her.  He asked her a number of questions as if she were a prostitute.  The complainer was terrified.  On a number of subsequent occasions, similar incidents occurred.  The final one was when the appellant said to the complainer, “£60 and I’ll let you shag me”.  Again, the complainer was terrified.

[3]        Charges 2 and 3 involved a 57 year old legal assistant.  She was a stranger to the appellant.  In Summer 2006, she had been walking to her work when the appellant, whom she had previously seen about, asked her if she would be interested in doing some modelling.  She became concerned that there might be a sinister element to his behaviour.  She changed her route to work.  Some months later, in 2007, she began noticing the appellant in the street, often near her home.  On one occasion the appellant appeared at her door.  She was both shocked and scared.  Nothing then happened until 2012, by which time the 2010 Act had come into force. 

[4]        The subsequent events involving this complainer were libelled as stalking; a contravention of section 39 rather than threatening or abusive behaviour under section 38 (commonly known as a statutory breach of the peace).  The complainer became aware of the appellant walking behind her.  This occurred on about 20 occasions, making the complainer “very anxious”.  The appellant appeared outside her house.  One incident occurred in January 2013, when she was walking to work.  She took to varying her route and taking the bus.  A number of further incidents happened until there were two final encounters in 2014, the last of which involved the appellant following the complainer for the whole length of Neilston Road in Paisley.  She was so nervous that she stayed on the road, rather than taking the quieter but usual route home. 

[5]        Charge 4 involved a 48 year old community library officer.  She too was a stranger to the appellant.  She became aware of the appellant in March 2013, when he started coming into the library and behaving oddly, notably staring at her and other members of the staff.  He spoke to the complainer, asking if she would go out with him.  His conduct had a profound affect upon her.  She said that she no longer felt safe at work.

Charge to the jury
[6]        The ground of appeal, for which leave was granted, was that the sheriff had misdirected the jury on the statutory offence in charges 3 and 4.  For reasons which have eluded the sheriff, he came to be under the misapprehension that charge 3, which simply followed on from charge 2, alleged a contravention of section 38 rather than 39 of the 2010 Act.  He may have wrongly anticipated that conduct which, prior to the 2010 Act, had been classified as a breach of the peace would be charged, after the Act, under section 38.  He did not direct the jury on the need, under section 39, for there to be actual fear or alarm, provided that it could reasonably have been anticipated.  The sheriff summarised the position as follows:

“... to establish the offence in charge 3, the Crown must prove the following: firstly, that the accused behaved in a threatening or abusive manner; secondly, that his behaviour would be likely to cause a reasonable person to suffer fear or alarm and, thirdly, the accused intended that his behaviour would cause fear or alarm, or he was reckless as to whether his behaviour would have that result.”

[7]        The sheriff went on to deal with charge 4, which he correctly noticed was a breach of section 39.  He said that a person stalked another if he engaged in a course of conduct and as a result the other person suffered fear or alarm.  This time the sheriff summarised the position in this way:

“So to establish the offence of stalking, the conduct requires to cause the ... victim to suffer fear and alarm and ... the Crown must establish, firstly, that the accused engaged in the course of conduct set out in the charge; secondly, the course of conduct caused [the complainer] to suffer fear or alarm; and, thirdly, the accused engaged in the course of conduct with the intention of causing [the complainer] to suffer fear or alarm or alternatively, he knew or ought to have known in all the circumstances, that engaging in the course of conduct would be likely to cause [the complainer] to suffer fear or alarm.”

Submissions
[8]        The appellant submitted that, following his “aberration”, as the sheriff himself described it, in relation to charge 3, the jury would have understood that they did not need to find that there was actual fear or alarm in respect of a breach of section 39 of the 2010 Act, provided that they found that it was anticipated that a reasonable person would suffer fear and alarm as a result of the conduct.  This was a misdirection, since the offence under section 39 is only committed if the conduct actually causes fear or alarm.  Although the sheriff properly directed the jury on charge 4, the fact that each charge was in the same terms was likely to have caused the jury to be confused in respect of both charges.  The misdirection was material and amounted to a miscarriage of justice. 

[9]        The advocate depute replied that no miscarriage of justice could have occurred.  The directions had to be viewed in the context of the evidence and the speeches covering issues which were live at the trial.  Given the directions which were given on mutual corroboration, the jury must have accepted the evidence of the two complainers on charges 1, 2 and 3.  In relation to charge 3, the complainer had said that she had been very anxious and had had to change her route home. 

Decision
 [10]     There was certainly a misdirection in relation to charge 3, in that the sheriff did not direct the jury that they required to find it proved that actual fear and alarm had been caused.  This, however, was not an issue which had loomed large at the trial, where the dispute had been one of identification.  From their verdict, it is clear that the jury found that the appellant’s course of conduct did cause the complainer fear or alarm.  These words remained in the charge upon the return of that verdict.  It would have been surprising, having regard to the circumstances, if the conduct had done anything other than that.  In addition, the jury found that the complainer had suffered actual fear and alarm in respect of charge 2, following the sheriff’s directions in that regard.  The difference between it and charge 3 was simply the use of the 2010 Act for conduct post dating its introduction.   In these circumstances, the court is satisfied that there was no material misdirection which could have resulted in a miscarriage of justice.  The appeal must be refused.

[11]      It remains to be said that the sheriff’s charge involved a patent error, which must have been obvious to the legal representatives present.  It would have been of assistance to the administration of justice, and avoided these proceedings, if this error had simply been drawn to the sheriff’s attention at the end of his charge and before the jury returned with their verdict.  The error might, if necessary, have been discussed and the sheriff could have corrected any error, if so advised.  There is, of course, no legal obligation on the parties to do this.  The defence representative would require to balance a number of factors in deciding whether to draw a patent error to the sheriff’s attention.  However, the court would have expected the procurator fiscal depute to have noticed this error and acted accordingly.