Dean Preston v. The Procurator Fiscal, Dundee [2015] HCJAC 94

Appeal against conviction:- On 19 February 2015, at Dundee Sheriff Court, the appellant was convicted after trial on summary complaint of a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 in that he did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm by making statements on a chatline in which he swore and promoted and encouraged the rape and other sexual abuse of children. It was accepted on behalf of the appellant that the statements made by the appellant were abusive, would be likely to cause a reasonable person to be alarmed and he was reckless as to whether they would cause alarm. At the trial the appellant sought to rely on the statutory defence in section 38(2) of the 2010 Act which provides:-“(2) It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.” The sheriff had rejected the submission at trial that the defence had been made out. The appellant appealed against that decision and it was contended on behalf of the appellant that the sheriff had erred in rejecting the submission that the section 38(2) defence was made out as the relevant phone calls were made in private and subsection 38(2) applied. On behalf of the Crown it was submitted that the sheriff had not erred as the calls had a wider actual and potential audience and the content referred to would clearly be alarming to a reasonable person. Here the court refused the appeal and held that the sheriff had been entitled to convict the appellant. The court described the content of the messages as “disgusting, abhorrent and shocking” and that, given the interactive media system in use, it could not be said that the remarks would be wholly private and there were other categories of people who could be exposed to the content which the appellant himself was aware of.