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Being Rude and Offensive Is Not a Crime, Yet… Fred Mackintosh Examines the Evolution of Section 38

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Being Rude and Offensive Is Not a Crime, Yet… Fred Mackintosh Examines the Evolution of Section 38 20 Scottish Legal News Annual Review 2016 Criminal Law www.scottishlegal.com 21 Being rude and offensive is not a crime, yet… Fred Mackintosh examines the evolution of Section 38 At the end of 2013 a man was prosecuted in Argyll for playing loud music to was reckless as to the effect they might cause. In a five judge decision, the annoyance and distress of the lieges. He was convicted, but on appeal Paterson v Harvie; [2014] HCJAC 87, the High Court of Justiciary Appeal the High Court of Justiciary decided that whatever he had done it did not Court made it clear that this test is an objective test and no real person has amount to threatening or abusive behaviour and quashed his conviction. to actually suffer fear or alarm. Now there was a time when it was a law student’s truism that almost any Although the Appeal Court in Paterson v Harvie decided it did not need to conduct in Scotland could, in the right circumstances, be a breach of the consider the right of freedom of expression to decide how Section 38 works peace. The “two cop bop”, or two-constable breach of the peace, was the it is worth remembering that the European Court of Human Rights has been staple of the Sheriff and District Court. clear that Article 10 of the Convention it is applicable not only to ideas that are favourably received or regarded as inoffensive or as a matter of Of course after Smith v Donnelly; 2001 SCCR 800, behaviour could only be a indifference, but also to those that offend, shock or disturb. breach of the peace if it involved conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. Until 2009 it did not matter whether a breach of the peace took place in public or private. That all changed when the High Court of Justiciary decided Since 2010 this new offence in Harris v HMA; [2009] HCJAC 80, that conduct that was severe enough to cause alarm to ordinary people and threaten serious disturbance to the of threatening or abusive community was not a breach of the peace if it took place in private. The effect of that decision was dramatic. It was immediately realised that behaviour has become quite domestic abuse that fell short of assault and took place in private would no longer be criminal unless Parliament took steps to change the law. possibly the most frequently Amendments were tabled to a bill already before Parliament and Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 was born. prosecuted crime in Scotland. 2015 was a year of continued success for Westwater Advocates perception descriptions included “a formidable group of Section 38 was drafted so that it covered behaviour in public and in private. as they continued to consolidate their strong position at the advocates”, “talented advocates at all levels of call” and “the During the debates in Parliament Cabinet Secretary for Justice Kenny With that in mind what should the law and a reasonable person think of heart of the Scottish legal community. clerks are really fantastic – very accommodating and nothing MacAskill MSP was clear that the new law would not criminalise conduct in is too much trouble for them”. In the 2015 Legal 500, 31 behaviour that is “rude and offensive, not only offensive to the complainer The Westwater stable is best known for its broad client base private that was not, before Harris v HMA, a breach of the peace. individuals received recommendations in 9 practice areas. but also offensive to any other persons hearing the remark” (to adopt the ranging from large corporate firms, to smaller niche partnerships Since 2010 this new offence of threatening or abusive behaviour has become words of Lord Brodie in RR v Murphy; 2015 SCL 577, but which does not and sole practitioners. The outstanding clerking team headed by In March, the stable staged a free 5-hour CPD event in Glasgow quite possibly the most frequently prosecuted crime in Scotland. involve threats of any kind? How far are we all prepared to see the criminal Sheila Westwater has a well-earned reputation for managing with seven sessions on topics such as the court reforms, justice system regulate offensive speech and conduct? As was intended section 38 is used to prosecute those who threaten and the very different needs of such a diverse range of instructing cohabitation claims, contributory negligence and executries. This abuse their partners in their homes and those who threaten police officers, In a recent unreported appeal by Stated Case (Ballantyne v PF Dunoon; solicitors. It’s no surprise that they are in the privileged position was followed by another free 2.5-hour CPD event in Edinburgh fire fighters, nurses, paramedics and doctors. It is now used for almost all [2014] HCJAC, 8 October 2014), Lady Clark of Calton reminded us all that of being the first port of call for a large number of firms who rely showcasing the five members the stable welcomed over the conduct that was once considered a breach of the peace. It seems that when for conduct to be likely to cause a reasonable person to suffer fear or alarm on the knowledge and expertise of the clerks in recommending summer: Mark Lazarowicz, Anne Bennie, Brian Crook, Vincent prosecutors have a choice between prosecuting for an old style breach of the there has to be something further than annoyance and distress. suitable advocates over a wide range of specialisms. Lunny and Jane Rattray. Westwater’s events are extremely peace or a Section 38; they almost invariably choose Section 38. popular with instructing agents travelling from near and far. That must be right. The sort of behaviour both Lady Clark and Lord Brodie There were many notable individual achievements amongst the So has Section 38 criminalised conduct that was not, before Harris v HMA, were considering; playing loud music to the annoyance and distress of the Westwater members this year. Sir Crispin Agnew QC with junior Turning to the coming year, in February Westwater Advocates a breach of the peace and taken the criminal law into new areas? lieges and also swearing and telling persons to “go home to their own counsel Donald Cameron, representing The John Muir Trust, is jointly sponsoring a major housing law seminar in Glasgow country” would probably not meet the conjunctive test for breach of the succeeded in a judicial review challenging a decision of the with the Legal Services Agency and it has been reported that There is of course no issue when it comes to threatening behaviour; people peace that it would alarm to ordinary people and threaten serious Scottish Ministers to grant consent to a 67 turbine wind farm Westwater’s Annual Multi-Disciplinary Conference will be held who make threats that are genuinely alarming and disturbing should be disturbance to the community. It seems that behaviour that would never prosecuted and in the past were prosecuted for breach of the peace. There in the Monadhliath mountain range in the Highlands. Kirsty in Edinburgh in March 2016. have been a breach of the peace can, in the eyes of some, become an Malcolm and John Speir represented the parties in the case of is more debate about behaviour that is not actually threatening. What is offence against Section 38. Dyslexia Scotland has been Westwater’s sponsored charity from Thomas McDonald v Annie McDonald [2015] CSIH61. The case “abusive behaviour” and to what extent should it be prosecuted? 1 April 2015. Sir Crispin Agnew QC raised £3,294.76 in June Unless the words of Lady Clark become more widely observed than current was heard by an Extra Division of the Inner House and concerned when he took part in the Edinburgh Night Ride, cycling 50 miles Recent Section 38 cases before the High Court of Justiciary Appeal have prosecution and police practice might suggest we may find out that despite pension apportionment on divorce. In a split decision the bench around Edinburgh and the Forth in an impressive time of 3 hours covered a range of “abusive” behaviour from; playing loud music to the the assurances given to Parliament being rude and offensive may turn out to determined that the sheriff’s decision should stand. Ruth Innes and 55 minutes. annoyance and distress of the lieges right up to discussing, in graphic terms be a crime after all. and Alison Wild appeared in the Supreme Court in a case and on a phone chat line, the sexual abuse of children. Other cases have regarding the habitual residence of children under the Hague included swearing at police officers who are standing in the accused’s front Fred Mackintosh is an Advocate at Terra Firma Chambers. He practices in the Convention on the Civil Aspects of International Child hall at 5:30am, telling persons to “go home to their own country” and High Court of Justiciary Appeal Court and is Senior Tutor for Criminal Court Abduction. forwarding indecent photographs of adults via phone messaging apps. Practice at the University of Edinburgh. He was leading counsel in one of the Further information on all of Westwater Advocates’ conjoined appeals addressed in the full bench decision of Paterson v Harvie. The number of individual recommendations in Chambers Bar counsel, services and areas of practice can be found There is little doubt that the most alarming conduct should criminalised, but where is the line to be drawn? Directory increased from 30 individuals in 12 areas of practice on their website www.westwateradvocates.com.
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