Anti-Catholic and bus ticket messages help define public order crime

Two new decisions of the Sheriff Appeal Court have helped illustrate the limits of the Scottish criminal law on public order offences.

In one, a conviction for the statutory offence of threatening or abusive behaviour was upheld in the case of a man who held a placard with the message "God hates Catholics" outside a Catholic cathedral as people were arriving for mass. In the other, a man who wrote his name and phone number on a bus ticket and handed it to a 12 year old boy travelling on the same bus, causing the boy to feel stressed and uncomfortable, was held not to have met the test for common law breach of the peace.

The bus ticket case was appealed from Aberdeen Sheriff Court, where a summary sheriff found Douglas McConachie (65) guilty of charge on evidence from the boy that the accused had been smiling and winking at him, and as the accused got off the bus he placed the ticket with his personal details on the boy's bag which was on his lap. The boy had felt "stressed and uncomfortable", and another witness thought "it didn't seem right" and "seemed off".

The sheriff considered that the conduct had been severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community, in terms of the test in Smith v Donnelly (2002). But Sheriff Principal Ian Abercrombie QC, who sat with Sheriff Sean Murphy and Sheriff William Holligan, said the case was most similar to Angus v Nisbet (2011), where passing a similar note in public to a female newspaper deliverer was held not to threaten serious disturbance such as to amount to breach of the peace. Bowes v Frame (2010), relied on by the sheriff, in which a taxi driver had repeatedly made sexually suggestive remarks to a girl aged 14 whom he was driving to school, was "considerably more serious". In the present case there had been no conversation at all, though the accused's behaviour had been "inappropriate and imprudent" and it was understandable that the boy had felt distress.

However the conviction of David Orr in Paisley Sheriff Court on a charge under s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, aggravated by religious prejudice, was upheld by Sheriff Principal Craig Turnbull, Sheriff Principal Marysia Lewis and Sheriff Peter Braid. The accused had told police he was making a peaceful protest outside the church and was not there for violence; on the other side of his placard was the message "God hates the Kirk". The court held that the message "God hates Catholics" could be considered abusive as it was aimed directly at persons likely to be reading it, and was likely to cause a reasonable person to suffer fear or alarm where a number of people had contacted the police, some of them complaining about the accused's behaviour.

"The fact that there was no violence or aggression displayed by any person at the locus is immaterial", Sheriff Principal Turnbull stated in delivering the opinion of the court. "The hypothetical reasonable person would, in our view, be alarmed by the appellant’s behaviour, given its timing and location. It was insulting to followers of the Roman Catholic faith. It had the potential to give rise to a confrontation outside a place of worship. To the extent that the appellant may have had a genuine message which he wished to put across – that the Roman Catholic Church was not following God’s teaching – the placard in no way, shape or form conveyed that message."

Click here for the opinion of the court in the Orr case, and here for the opinion in the McConachie case.