Sheriff’s ‘misdirection’ on statutory offence of stalking did not result in miscarriage of justice, appeal court rules

The Lord Justice General, Lord Carloway, sitting with Lady Paton and Lady Clark of Calton, heard that the appellant Stephen McBride was sentenced to two years’ imprisonment and given supervised release order after being convicted in December 2015 at Paisley Sheriff Court 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).

Charge 1 involved a 64-year-old art teacher, a stranger to the appellant, who was left “terrified” after he followed her and asked a number of questions as if she were a prostitute, with similar incidents occurring on several occasions during August 2007.

Charges 2 and 3 involved a 57-year-old legal assistant, also a stranger to the appellant, who was walking to work in summer 2006, when the appellant asked her if she would be interested in doing some modelling.

She became concerned that there might be a sinister element to his behaviour and changed her route to work, but some months later, in 2007, she began noticing the appellant in the street, often near her home, and one occasion she was left “shocked and scared” when he turned up at her door.

Subsequent events began happening in 2012, by which time the 2010 Act had come into force and were therefore libelled as stalking, a contravention of section 39 rather than threatening or abusive behaviour under section 38, commonly known as “statutory breach of the peace”.

There were about 20 occasions, including one in January 2013 and two final encounters in 2014, where the complainer became aware of the appellant following her, making her feel “very anxious” and causing her to vary her route.

The complainer in charge 4 was a 48-year-old community library officer – again a stranger – who became aware of him in March 2013 when he started coming into the library and behaving oddly, notably staring at her and other members of the staff, and once asking the complainer if she would go out with him.

Following his conviction, the appellant – who had several convictions from the courts in England for harassment – was granted leave to appeal on the ground that the sheriff had misdirected the jury on the statutory offence in charges 3 and 4.

For some unexplained reason the sheriff 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.

It was thought that 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, but 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 went on to deal with charge 4, which he correctly noticed was a breach of section 39, and 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”.

However, the appellant submitted that, following what the sheriff himself described as his “aberration” 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, it was argued, 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 – a material misdirection which amounted to a “miscarriage of justice”, it was submitted.

However, the appeal judges ruled that while there was “certainly” a misdirection in that the sheriff did not direct the jury that they required to find it proved that actual fear and alarm had been caused, they held that it was not an issue which had “loomed large” at the trial, where the dispute had been one of identification.

Delivering the opinion of the court, the Lord Justice General said: “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.”

Lord Carloway added that both the defence representative and advocate depute ought to have noticed the “patent error” and discussed the issue with the sheriff.

He said: “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.”