Baig V. Harvie Case Brief

Baig v Harvie relates to the crime of threatening or abusive behaviour found in section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. This case comment will explain the relevant terms of section 38(1), and show the way in which the facts of the case constitute the offence. It will also discuss the defence created by section 38(2) and its application. Finally, it will highlight the key issue in relation to the offence; whether it was necessary to create the offence of threatening or abusive behaviour; and how the crime operates in relation to the common law crime of breach of the peace.

Mirza Baig parked his vehicle on Northland Drive Glasgow which is a restricted parking area without displaying the required parking permit.

As a result, Baig was issued a penalty charge notice. Baig challenged the parking attendants displaying behaviour that was threatening and abusive. Baig’s conduct was also observed by passers-by. A trial took place at Glasgow Sheriff Court where Baig was convicted under section 38(1). However, he appealed his conviction.

Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 provides that…’’
(1) A person (‘A’) commits an offence if –
(a) A behaves in a threatening or abusive manner,
(b) The behaviour would be likely to cause a reasonable person to suffer fear or alarm, and
(c) ‘A’ intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.’’

Clearly Baig had the actus reus. His behaviour was threatening or abusive as he swore and shouted at the parking attendants. Baig’s conduct would have caused a reasonable person to suffer fear or alarm due the escalation of his offensive behaviour. Baig also had the mens rea, as he followed the parking attendants about and even called the attention members of the public to the incident when he pointed to Brown, and called him a racist. This clearly shows his intention to cause fear or alarm.

Section 38 (2) states: ‘It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable’ . Baig cannot benefit from the provisions of this section, as his behaviour cannot be considered reasonable. A reasonable person may have challenged the issued ticket through the administrative system of redress at Glasgow City Council and not through a course of conduct that was abusive or threatening.

The key issue in Baig v Harvie was enunciated by Lady Paton in her judgement, …’In my view, the essence of the statutory offence is that the accused’s conduct is to be judged by an objective test in which the actual effect of the threatening or abusive behaviour on those who experience it is irrelevant’ .

Baig’s defence was that the two parking attendants were not in a state of fear or alarm and as such a breach of section 38(1) had not been committed. This argument was rightly rejected by the court. It is not a requirement of section 38(1) that Baig’s behaviour causes fear or alarm, it is sufficient if a reasonable person would be likely to suffer fear or

alarm.

This incident occurred in a public place and was observed by members of the public. In my view, Baig’s behaviour satisfies that required for a conviction for breach of the peace as per Smith v Donnelly , …’is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community’ . For example, a member of the public of a similar ethnicity to Baig or the parking attendant may have been alarmed and may have offered some assistance to Baig or the parking attendant respectively thereby leading to actions which may threaten community cohesion.

Prior to the introduction of the statutory offence of section 38(1), crimes of this nature were mostly prosecuted as a contravention of the common law crime of breach of the peace.

However, since the landmark case of Smith v Donnelly, a ‘public element’ became a requirement for conviction for a breach of the peace. Hence, it became necessary to promulgate a law that considered crimes of this kind occurring in private spaces like homes. Section 38(1) appear particularly well suited to domestic crimes which often take place in private and where it is less likely to ‘threaten serious disturbance to the community’ .

Bringing domestic crimes under a charge of breach of the peace is not likely to lead to a conviction as in Hatcher v Harrower , where the accused subjected the complainer to a tirade of abuse in the presence of their children. The court held that the accused’s conduct was threatening or abusive and would be likely to cause a reasonable person to suffer fear or alarm. However, it did not find his behaviour capable of threatening serious disturbance to the community because their children who were the only witnesses were not considered by the court to be members of the community or

public.

However, as held in McDougall v Dochree , a crime committed in private may be deemed a breach of the peace if once discovered it might reasonably lead to members of the public being alarmed, disgusted or upset. In this case, the accused on various occasions peered through a small hole, near the floor in the wall of a locked lavatory, at undressed women using a sun bed in a solarium adjoining the lavatory.

Breach of the peace and section 38(1) complement each other in dealing with a vast array of crimes occurring both in private and in public life. Therefore, the promulgation of section 38(1) has enhanced the Procurator Fiscal’s ability to distinguish between crimes of disorder occurring in public and private. This ensures the libelling of the appropriate charge by the Procurator Fiscal.