Man who approached girl, 14, loses appeal against ‘threatening behaviour’ conviction

The Sheriff Appeal Court rejected the argument that sheriff erred in repelling a defence submission of “no case to answer” after it was argued that that appellant’s conduct did not meet the requirements for contravening section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Alistair Dunlop QC and Sheriff Michael O’Grady QC, heard that the appellant Andrew Burnett was convicted on a single charge, the terms of which were that on an occasion in December 2015 and in April 2016 he approached the teenager, engaged her in conversation and during that first encounter invited her to go with him to her home address, causing her to suffer fear and alarm.

The principal issue in the appeal was whether the sheriff erred, the contention being that the conduct did not meet the requirements of s.38, specifically that it did not amount to threatening and abusive behaviour which was likely to cause a reasonable person to suffer fear or alarm.

The submission was underpinned by a reference to the Appeal Court decision in Angus v Nisbet 2011 JC 69, which involved factual circumstances closely analogous to the present case and in which a breach of the peace conviction was overturned.

Separately, the appellant challenged the verdict of the sheriff in proceeding to convict after having first repelled the submission of no case to answer.

In rejecting the no case to answer submission the sheriff distinguished the case of Angus v Nisbet, firstly on the grounds that that case was dealing with breach of the peace and that in the instant case it was unnecessary to prove that the conduct was serious enough to threaten serious disturbance to the community.

In the second place, he took the view that in any event the conduct went further specifically that the appellant had invited the complainer to go with him to his house and by seeking information about where the complainer lived.

The sheriff concluded that in context the evidence was sufficient to establish the essential elements of the offence and he proceeded to find him guilty as libelled.

There was evidence of persistent conduct of an adult man who had invited a lone child to whom he was a stranger to go with him to his house followed by a second approach in the early hours of the morning.

There was evidence, according to his view of the matter, from which it could be inferred that the complainer and her mother were actually alarmed by his conduct.

Furthermore, when the complainer’s mother came on the scene on the occasion in April and asked the appellant what he was doing approaching her daughter, he replied “I’m no like that”.

This reaction including in particular what he said supported the inference that there was the requisite mens rea.

In support of the appeal counsel for the appellant submitted that a threat had to include an “element of menace” and that there had to be some material which supported a “sinister intent”, but what we had here was conduct which, just as in the case of Angus v Nisbet, was “below the threshold of criminality”.

It was argued that, absent the availability of any evidence which supported a sinister intent, the sheriff had been wrong to reject the submission of no case to answer.

Separately, in dealing with the sheriff’s verdict, the submission was that the sheriff had failed adequately to explain his reasons specifically in relation to the first two constituent parts of section 38, but also in relation to the third and in that regard the contention was that there was no basis upon which the sheriff could conclude that the appellant was reckless as to whether his conduct would cause fear or alarm.

But the appeal sheriffs ruled that the sheriff was “well-founded” in concluding that the essential requirements of section 38(1) had been satisfied.

Delivering the opinion of the court, Sheriff Principal Dunlop said: “We agree with him that the present case has certain similarities with those in Angus v Nisbet but we also share his view that the position here goes further and is much more clear cut. We think it is within judicial knowledge and is certainly widely accepted that sexual abuse of children is a common problem and we venture to suggest that no parent, teacher or indeed child of an age such as the complainer will be unaware of that.

“In the circumstances here, the complainer clearly concluded, and in our view was entitled to conclude, that the appellant had a sexual interest in her. That that was a reasonable inference is implicitly borne out by what the appellant said to the complainer’s mother when she confronted him.

“In our opinion these circumstances indicate a scenario which is intrinsically threatening and which any reasonable person would objectively find alarming…All of this in our opinion suggests, clearly, that the sheriff was entitled to repel the submission of no case to answer.”

Turning to the question of the verdict, the appeal sheriffs said they were “unable to agree” with the submissions advanced by counsel for the appellant with regard to the alleged lack of proper reasoning given by the sheriff.