Woman fined for using ‘racist phrase’ has sentence quashed after judges question prosecution and conviction

The Criminal Appeal Court admonished the appellant after observing that “it could not understand how the appellant had come to be prosecuted, let alone convicted” of an offence under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, and that in the circumstances the disposals available to the two judges were “limited”.

Lord Brodie and Lady Clark of Calton heard that the appellant “RR”, a door steward at a licensed premises in Aberdeen, was involved in a verbal exchange with an Italian student during which she was heard by one witness to have said “go back to your own country”, while her evidence and that of the head steward was to the effect that she told the complainer to “go home”.

She was convicted by the sheriff at Aberdeen of behaving in a “threatening or abusive manner” towards him by using a “racist phrase” which was” likely to cause a reasonable person to suffer fear or alarm”.

In her appeal against sentence it was submitted that what was described in the sheriff’s report was almost as “minor” an example of a contravention of section 38 as could be imagined and that the fine of £1,000 was “clearly excessive”.

However, when it came to consider appeal the court found itself in a “difficulty”.

It explained that “having regard to the relevant legislation and the evidence led at trial, as reported by the sheriff in her report, it could not understand how the appellant had come to be prosecuted, let alone convicted”.

The advocate depute also confessed to “puzzlement” as to why it had been thought necessary to prosecute the matter.

Delivering the opinion of the court, Lord Brodie said: “We immediately accept that what was said to the complainer by the appellant was rude and offensive, not only offensive to the complainer but also offensive to any other persons hearing the remark, among whom the Crown witnesses may be numbered, who wish that persons from other countries be treated with proper courtesy when they are in Scotland.

“However, we had more difficulty in understanding how what the appellant said constituted a contravention of section 38 of the 2010 Act. When called upon, the advocate depute could not assist.

“Having charged her with contravention of section 38, it was for the Crown to establish: (a) that the appellant had behaved in a threatening or abusive manner; (b) that the behaviour would be likely to cause a reasonable person to suffer fear or alarm and (c) that the appellant intended by that behaviour to cause fear or alarm or was reckless as to whether the behaviour would cause fear or alarm.

“We do not understand upon what basis the sheriff concluded that such a remark, taken in isolation, would be likely to cause a reasonable person to suffer fear and alarm, nor upon what basis it was open to the sheriff to infer that the appellant had intended to cause fear or alarm.”

The initial submission on behalf of the appellant was that the sentence imposed by the sheriff should be quashed and substituted with an admonition, as provided for by section 246(1) of the Criminal Procedure (Scotland) Act 1995.

However, as the discussion before the court progressed, counsel for the appellant Craig Findlater moved for an extension of time to lodge an appeal against conviction, but the court refused the application as it came “very late in the day”.

Lord Brodie explained: “No reason was given for that lateness, other than what might be implied from the circumstances in which the application was made.”

“We were not advised of any irremediable prejudice to the appellant following upon her having a conviction,” he added.

The advocate depute drew the court’s attention to the provisions of section 246(3) of the 1995 Act, which allow the court absolutely to discharge a person charged before a court of summary jurisdiction.

But the difficulty about that course, the judges explained, was that it applied “where the court is satisfied that the accused committed the offence charged” and that was not a position that counsel for the appellant wished the court to adopt.

Lord Brodie concluded: “In the circumstances the court found its available options to be limited. As initially invited to do by Mr Findlater we shall quash the sentence imposed by the sheriff and substitute an admonition.”