Francis Bartkus v. Procurator Fiscal, Glasgow [2015] HCJAC25

Appeal against conviction:- On 16 October 2014, following trial on summary complaint at Glasgow Sheriff Court, the appellant was convicted of a charge of breach of the peace in that between 9 February 2014 and 26 February 2014 at a shop in Silverburn Shopping Centre he “...conducted himself in a disorderly manner, asked a member of staff inappropriate questions relating to women’s underwear,
asked another member of staff whether she wore children’s clothing while staring at her breast, placed members of staff in alarm by such conduct...”. At the close of the Crown case there was a submission by the defence under section 160 of the Criminal Procedure (Scotland) Act 1995 that the Crown had failed to lead evidence sufficient in law to justify a conviction of the offence libelled which was repelled by the sheriff and the appellant was subsequently convicted. The appellant appealed by stated case and the issue here was whether the sheriff erred in law in convicting the appellant of a breach of the peace. It was submitted here on behalf of the appellant that the conduct did not amount to a breach of the peace as the conduct had been described as making witnesses uncomfortable and uneasy, and was inappropriate, but it did not result in a call to the police. Here the court refused the appeal. The relevant test as properly considered by the sheriff was set out by Lord Coulsfield in Smith v Donnelly 2002 JC 65 in which it is made clear that something substantially greater than mere irritation is involved:- “What is required... is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person”. Here the court considered that the appellant’s conduct was of sufficient gravity to be genuinely alarming and disturbing to a reasonable person as it had been to the four Crown witnesses who spoke to the appellant’s conduct on the various occasions he had entered the shop and spoken with them. The court did observe that the conduct described in the case was at the lower end of conduct amounting to a breach of the peace.