Gary Mack v. Procurator Fiscal, Falkirk [2015] HCJAC 113

Appeal against conviction:- On 28 May 2015, at Falkirk 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, with a racial aggravation in terms of section 96 of the Crime and Disorder Act 1998. The conduct for which he was convicted related to the appellant’s attendance at an alcohol detoxification unit at the Forth Valley Royal Hospital. The appellant was heard to refer to Dr Gotz, a consultant physician who was German, as a “Nazi German” and when he was asked to stop he continued to describe him as being a “Nazi German” and a “Nazi bastard” and to it getting louder and louder after being asked to stop. At the trial, the conduct was spoken to by two witnesses who worked at the hospital. One of the witnesses said it caused upset and distress to others in the room, whilst the other witness spoke to the appellant being angry and, whilst not threatening, she considered the comments to be nasty and caused her to feel uneasy for both staff and patients. At the close of the Crown case a ‘no case to answer submission’ was made and repelled. The basis of the submission was that, whilst it was conceded that the conduct could be described as abusive, would the conduct cause a reasonable person to suffer fear or alarm in terms of section 38(1)(b)? It was submitted here on behalf of the appellant that the sheriff was not entitled to infer from the evidence of the comments getting “louder and louder” that the appellant was shouting and only one witness spoke to the words getting louder. It was further submitted that the sheriff had erred in holding that the section 96 aggravation should stand as the comments made could not also form the basis of the section 96 aggravation. On behalf of the Crown it was submitted that, taking the Crown case at its highest, the sheriff was entitled to hold that the evidence of the two witnesses was conduct likely to cause alarm on the part of those in a hospital environment. Here the court refused the appeal and considered that the repeated racial remarks made, in the context of a hospital environment, with the comments getting louder and the appellant being angry was sufficient for the charge to be made out. In addition, the court considered that comments made could form not only the basis of the section 38(1) contravention but the section 96 aggravation also.