Edinburgh man who entered wrong flat while naked has conviction quashed by Sheriff Appeal Court

About this case:

• Citation:
  [2022] SAC (Crim) 2
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff McCartney

It was argued by KWM that the sheriff had erred in convicting him of an offence under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 as he had not intended to cause fear and alarm to the occupants of the flat.

The appeal was heard by Sheriff Principal Marysia Lewis along with Appeal Sheriffs Thomas McCartney and Fiona Tait. Macintosh QC appeared for the appellant and Prentice QC for the Crown.

Problems with insomnia

The Crown led evidence from a 44-year-old woman, Mrs B, and her two sons, who had lived in a flat one floor above one occupied by the appellant. They gave evidence that, at around 11pm on 14 September 2019, the appellant entered their flat through the unlocked main door. He appeared to be intoxicated and soaking wet, with blades of cut grass attached to parts of his naked body, and he was cupping his genitals with his hands.

Once inside the flat, the appellant tried to open the door to a bedroom. After Mrs B talked with the appellant, he was ushered out of her flat. He made no attempt to physically resist, remained mostly silent throughout, and did not remain in the flat for longer than a few minutes. The appellant’s evidence was that he had no memory of the incident and that he had long-standing problems with insomnia that he combated with alcohol.

A submission of no case to answer was made on the basis that there was insufficient evidence that the appellant had behaved threateningly or abusively. The sheriff repelled this submission and found the appellant guilty as charged. On appeal, it was submitted that the sheriff had erred in repelling the no case to answer submission as he had failed to properly address two of the three constituent parts of the statutory offence.

It was argued that the sheriff required to explain what about the appellant’s behaviour characterised it as threatening or abusive, with a bland assertion that the behaviour was threatening or abusive being inadequate. Nothing in the prosecution’s evidence supported such a conclusion, and the evidence that the appellant had looked confused and did not know where he really was during the incident prevented the sheriff from being satisfied beyond reasonable doubt that he intended to cause or was reckless as to whether his behaviour would cause fear and alarm.

Absence of explanation

Delivering the opinion of the court, Sheriff Principal Lewis said of the sheriff’s decision to repel the no case to answer submission: “Contrary to the submission on behalf of the appellant we consider that [his] behaviour viewed objectively could properly be characterised as inherently threatening thereby meeting section 38(1)(a)It was not disputed that viewed objectively a naked man entering a private home uninvited late at night would be likely to cause a reasonable person to suffer fear or alarm thereby meeting section 38(1)(b).”

She continued: “Having regard to the evidence of three eye-witnesses as to the behaviour of the appellant, there was a sufficiency of evidence taking the Crown case at its highest to enable the inference to be drawn as to section 38(1)(c), being the mens rea that is required.”

Turning to whether the sheriff was entitled to convict, Sheriff Principal Lewis began: “Invasion of a person’s private home, where they are entitled to expect to feel safe and secure, by a naked and intoxicated male is in our view eloquent of threatening behaviour. It was not disputed that such behaviour would be likely to cause a reasonable person to suffer fear or alarm and indeed there was some evidence of it actually having such an impact on those present.”

However, she went on to say: “There is no finding in fact that the appellant intended by his behaviour to cause fear or alarm. There is no finding in fact that the appellant was reckless as to whether the behaviour would cause fear or alarm. That essential aspect of the tripartite test for an offence in terms of section 38(1) is barely considered within the sheriff’s Note. There is nothing more than a bare assertion in one sentence that the appellant either intended to cause fear or alarm or was reckless as to whether his behaviour would cause fear or alarm.”

Sheriff Principal Lewis concluded: “Intention or recklessness in terms of section 38(1)(c) is an essential component of a section 38(1) offence. The absence of any relevant finding in fact or explanation as to the sheriff’s consideration and conclusions on this aspect of the test within the Stated Case causes us to conclude that this component part of a section 38(1) offence has not been adequately considered based upon the evidence and that a miscarriage of justice therefore arises.”

The appellant’s conviction was therefore quashed.