Mirza Baig v. Procurator Fiscal, Glasgow [2015] HCJAC 109

Appeal against conviction:- The appellant appeared on summary complaint at Glasgow Sheriff Court in relation to two charges:- (1) a contravention of Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010; and (2) a contravention of section 50A(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995. At the close of the Crown case a submission of “no case to answer” was rejected in relation to charge 1 but sustained in relation to charge 2. The appellant gave evidence and was subsequently convicted of charge 1. The appellant appealed by stated case. The circumstances of the offence were that the appellant approached two parking attendants who had issued a penalty charge notice in respect of his car which was filmed and audio-recorded by a camera worn by one of the attendants. The sheriff heard evidence of the abusive, aggressive and confrontational behavior of the appellant which had been recorded and lasted for 7 minutes and 59 seconds. On behalf of the appellant at the appeal it was contended that if what takes place is solely verbal the test for that behaviour being deemed criminal has to be robust and in the present case it was submitted that the sheriff’s findings in fact were insufficient to satisfy the objective test of causing fear and alarm and the conviction should be quashed. On behalf of the Crown it was submitted that what took place was more than a mere argument, that the findings in fact were sufficient to justify a conviction under section 38(1) and the sheriff had been entitled to convict the appellant. Here the court refused the appeal and pointed to the constituent parts of an offence under section 38(1) as discussed in Patterson v Harvie 2015 JC 118. The court considered that questions of fact for the sheriff hearing the evidence were primarily a matter for the sheriff and in the present case the sheriff, having heard all the evidence, and in particular the video-recording of the incident, was well placed and entitled to hold that the appellant had behaved in a threatening or abusive manner. The court also considered that the sheriff’s findings in relation to the appellant’s behaviour not being ‘reasonable’ and not meeting the statutory defence under section 38(2) could not be criticised.