Edward Stephen McBride (aka Guy Richie) v. Her Majesty’s Advocate [2016] HCJAC 66

Note of appeal against conviction:- On 2 December 2015, at Paisley Sheriff Court, the appellant was convicted after trial of four charges two being common law breaches of the peace (charges 1 and 2) and charges 3 and 4 being ‘stalking’ offences contrary to section 39 of the Criminal Justice and Licensing (Scotland) Act 2010. The sheriff imposed a sentence of 2 years imprisonment on each charge to run concurrently, together with a Supervised Release Order. The appellant appealed against his conviction on the ground that the sheriff had misdirected the jury on the statutory offence in charges 3 and 4. In relation to charge 3 the sheriff was under the misapprehension that it followed on from the common law breach of the peace charge (charge 2) and was a contravention of section 38 (commonly known as a statutory breach of the peace) rather than section 39 of the 2010 Act. As such the sheriff did not direct the jury on the need, for a charge under section 39, for there to be actual fear or alarm, provided that it could reasonably have been anticipated. The sheriff dealt with charge 4 in his charge and correctly directed the jury in relation to a section 39 contravention 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. Here it was submitted on behalf of the appellant that in relation to charge 3 the jury would think 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, as long as they found that it was anticipated that a reasonable person would suffer fear and alarm as a result of the conduct and this amounted to a material misdirection. It was necessary for there to be actual fear and alarm for a section 39 contravention and this was omitted from his directions and it is likely that the directions given in relation to charges 3 and 4 would have resulted in confusion in what was required for a section 39 contravention and the misdirection resulted in a miscarriage of justice. On behalf of the Crown it was submitted that no miscarriage of justice occurred as it was clear that the jury must have accepted the evidence of the two complainers on charges 1, 2 and 3 in light of the directions on mutual corroboration. It was further submitted that in relation to charge 3 the complainer gave evidence that she had been very anxious and had had to change her route home as a consequence of the appellant’s conduct. Here the court refused the appeal. The court noted that there had been a misdirection in relation to charge 3 by the sheriff failing to direct the jury that they required to find it proved that actual fear and alarm had been caused. The court went on to state, however, that the issue at the trial had been identification and it was clear from the jury’s verdict that they considered that the appellant’s course of conduct did cause the complainer fear or alarm. In the circumstances the court did not consider that the misdirection was material so as to result in a miscarriage of justice. The court concluded by observing that the procurator fiscal depute and defence solicitor must have noticed the error at the time and, at least as far as the Crown were concerned, the error ought to have been brought to the attention of the sheriff.