‘Stick it up your a***’: Judges refuse appeal against ‘threatening or abusive’ behaviour conviction

The Criminal Appeal Court ruled that the sheriff was “entitled” to convict the appellant based on the findings in fact, adding that the sheriff’s findings were to be “accorded considerable respect”.

Lady Paton (pictured), Lord Drummond Young and Lady Clark of Caltonheard that on 31 January 2014 the appellant Mirza Baig had an encounter with two parking attendants who had issued a penalty charge notice in respect of his car.

The appellant, who was accompanied by his brother, had parked his vehicle in a restricted parking area on Northland Drive in Glasgow without displaying the necessary parking permit.

Among the sheriff’s findings in fact was that the appellant approached one of the attendants, Fraser Brown, in an “aggressive and confrontational” manner by shouting and being “verbally abusive”.

An audio-video recording of the encounter, which was filmed by a body camera worn by one of the attendants, showed the appellant throwing the penalty charge notice to the ground and shouting “stick it up your arse”.

Mr Brown replied, “excuse me?”, to which the appellant responded, “I’ll f*cking excuse nobody”.

As the appellant walked away, Mr Brown retorted with the word “arsehole”.

The appellant subsequently faced two charges in a trial at Glasgow Sheriff Court, the first libelling an alleged breach of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, and the second alleging a breach of section 50A(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995.

At the close of the Crown case, a submission of “no case to answer” was sustained in respect of charge 2, but rejected in respect of charge 1, of which he was subsequently convicted.

However, the appellant challenged his conviction by way of stated case, arguing that on the evidence, his behaviour was “not threatening” in either a manner or degree such as to satisfy section 38, nor was it likely to cause a reasonable person to suffer fear or alarm.

It was submitted that where an altercation was purely verbal, the test for criminalisation of such behaviour had to be “robust”.

In contrast with the common law breach of the peace, section 38 contained no requirement that the behaviour was likely to lead to public disorder.

On behalf of the appellant it was also contended that the appellant had not been proved to have intended to cause fear or alarm or to be reckless as to the effect of his behaviour.

It was submitted that the findings-in-fact were “insufficient” to satisfy the objective test of causing fear or alarm, as the two parking attendants were not in a state of fear and alarm, and as no objective person was likely to suffer fear or alarm.

Finally, it was argued that his behaviour had been “reasonable” in the circumstances, and demonstrated that he might have been “unaware” of the possibility that he might be committing an offence.

Refusing the appeal, the judges held that the sheriff was “entitled” to conclude that the appellant had, as a matter of fact, behaved in a threatening or abusive manner and observed that the sheriff found as a fact that the appellant’s conduct was “likely to cause a reasonable person to suffer fear or alarm”.

Delivering the opinion of the court, Lady Paton said: “In our opinion, there was ample evidence entitling the sheriff to form the view that, on an objective basis, the behaviour in question was likely to cause a reasonable person to suffer fear or alarm.

“The sheriff went on to find that the two parking attendants had in fact been fearful of, and alarmed by, the appellant’s behaviour. That was not an essential prerequisite of the offence, and even without that finding there was ample evidence which the sheriff accepted, entitling her to reach the view that she did.

“Finally the sheriff found as a fact that the appellant intended his behaviour to cause the two parking attendants fear or alarm, or was at least reckless whether his behaviour would have that effect.

“Again, the sheriff, having heard all the evidence including the appellant’s own evidence, was entitled to accept some parts of the evidence, reject other parts, draw inferences and ultimately to find the third necessary prerequisite for the offence to be established.

“Finally the sheriff found as a fact that the appellant’s behaviour was not, in the particular circumstances, reasonable. Nothing has been said in the course of the debate before us to persuade us that she was not entitled to do so.”