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URL: http://www.bailii.org/scot/cases/ScotHC/2004/19.html
Cite as: [2004] ScotHC 19

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Brown v. Procurator Fiscal [2004] ScotHC 19 (17 March 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

E. F. Bowen, Q.C.

 

 

 

 

 

 

 

 

 

Appeal No: XJ401/03

OPINION OF THE COURT

delivered by LORD MACFADYEN

in

APPEAL AGAINST SENTENCE

by

DAVID EDWARD BROWN

Appellant;

against

PROCURATOR FISCAL, Inverness

Respondent:

_______

 

 

Appellant: Brown, Advocate; Craig Wood, Inverness

Respondent: Ms. Hughes, A.D.; Crown Agent

21 January 2004

 [1]      The appellant, David Edward Brown, pled guilty at Inverness Sheriff Court on 20 January 2003 to a charge of contravening section 50A(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995. That section provides that a person is guilty of an offence if he "acts in a manner which is racially aggravated and which causes, or is intended to cause, a person alarm or distress". The charge to which the appellant pled guilty was in the following terms:

"on 24 January 2002 at Burnett Road Police Station, Inverness you ... did act in a racially aggravated manner which caused and was intended to cause alarm and distress to a person, namely Shahid Maqsood, Constable, Northern Constabulary, Inverness in respect that you repeatedly made racial remarks".

 [2]      The circumstances of the offence, as described in the Sheriff's report, may be summarised as follows. At 11 p.m. on the night in question the appellant was properly taken into police custody. One of the arresting officers was the complainer, Shahid Maqsood, who is a Muslim of Pakistani origin. At the charge bar, the appellant began to shout at the complainer: "I am the prophet Elijah Mohammed, and I don't recognise your laws". He continued by saying he was a Muslim and "OK to be drunk". When charged with the offence under section 50A(1)(b) the appellant replied: "I don't give a fuck - get the wogs out of this country". The complainer found the appellant's remarks extremely offensive.

[3]      Having been addressed by the Procurator Fiscal Depute and the appellant's solicitor, and having considered the Social Enquiry Report, the Sheriff imposed on the appellant a probation order for a period of twelve months, and made it a condition of that order that the appellant perform 100 hours of unpaid work in the community. In addition, the Sheriff imposed a compensation order requiring him to pay £200 to Constable Maqsood.

[4]      This appeal is concerned only with the compensation order. The appellant takes no issue with the probation order or the condition requiring him to undertake 100 hours unpaid work.

[5]      In the Note of Appeal against Sentence, the contention which was put forward in support of the proposition that the Sheriff erred in imposing the compensation order was expressed as follows:

"... a police officer, on duty at a police station, who is the subject of such abuse at the hands of a drunk man is not meritorious of a compensation order".

 [6]      In the written submissions lodged on the appellant's behalf, however, the principal arguments put forward were somewhat differently expressed. Two contentions were advanced. The first was that, having regard to the penalty imposed by way of the probation order and the condition requiring the performance of unpaid work, the compensation order was excessive and inappropriate. The second was that since the officer, although offended by the racially abusive remarks made by the appellant, had not suffered any "personal injury, loss or damage", there was no proper basis for a compensation order under section 249(1) of the Criminal Procedure (Scotland) Act 1995. In that connection reference was made to Smillie v Wilson 1990 SCCR 133.

[7]      In his oral submissions before us, Mr Brown, who appeared for the appellant, advanced the arguments summarised in the written submissions. He did not advance the differently formulated contention set out in the Note of Appeal.

[8]      Section 249(1) of the Criminal Procedure (Scotland) Act 1995 (re-enacting section 58(1) of the Criminal Justice (Scotland) Act 1980) provides that:

"... where a person is convicted of an offence the court, instead of or in addition to dealing with him in any other way, may make an order (in this Part of this Act referred to as "a compensation order") requiring him to pay compensation for any personal injury, loss or damage caused, whether directly or indirectly, by the acts which constituted the offence."

 [9]      Parliament has thus given the court power to make a compensation order only where the acts which constituted the offence have caused "personal injury, loss or damage". The phrase "loss or damage" is apt to open the way to a compensation order where, as a result of the offence, property has been damaged or destroyed. Where the effect of the offence is on the complainer personally, however, the test laid down by Parliament is whether the complainer has suffered personal injury. The law does not regard a person who has been alarmed or terrified as having suffered personal injury. That is made clear in Smillie v Wilson per Lord Justice Clerk Ross at 135D-E. We consider that the same applies to other reactions, such as being distressed, or insulted, or offended. None of these by itself amounts to personal injury. Before a court may make a compensation order under section 249(1), there must be placed before it information disclosing that the complainer suffered personal injury. The charge need not libel that injury was suffered, but there must be information that the complainer suffered something that can properly be described as "personal injury" (Campbell v Stott 2001 SCCR 10 at 11F to 12A; see also Bruce v MacLeod 1998 SLT 173).

[10]      In the present case the information laid before the Sheriff was that Constable Maqsood had found the appellant's remarks extremely offensive. There was, however, no information that he suffered anything that could be regarded as amounting in law to personal injury. In these circumstances, although we readily understand the Sheriff's view that it was necessary to underline the court's strong disapproval of what had occurred, we do not consider that he had power under section 249(1) to make a compensation order. The appeal must therefore succeed and the compensation order must be quashed.

[11]      We wish to emphasise that in taking that course we are not endorsing the proposition advanced in the Note of Appeal that a police constable on duty who is subjected to racial abuse does not merit a compensation order. The appeal succeeds simply because Parliament has not given the courts power to make a compensation order where the impact of the offender's behaviour falls short of the infliction of personal injury.

[12]      In these circumstances we do not require to consider the other principal submission which was maintained before us, namely that the other elements of the order made by the Sheriff constituted a sufficient penalty.

[13]      For the sake of completeness we should record one further submission made by Mr Brown on behalf of the appellant. He drew our attention to the fact that the minutes record that the Sheriff (a) made a probation order with the condition requiring the performance of unpaid work, and (b) made a separate compensation order. He pointed out that that course is prohibited by section 249(2)(b) of the Criminal Procedure (Scotland) Act 1995, which provides that it shall not be competent to make a compensation order where the court also makes a probation order. The point is, however, as Mr Brown recognised, an entirely technical one, since the same result could have been achieved by making the payment of compensation a condition of the probation order (section 229(6)). Indeed, it is evident from the terms of the Sheriff's report that that is what he intended to do. We therefore take the view that, had there been a basis for compensation, in the form of information that Constable Maqsood had suffered personal injury, it would have been possible to cure the formal defect in the orders which were minuted by substituting, for the separate probation and compensation orders, a probation order containing a condition requiring payment of compensation.

 

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URL: http://www.bailii.org/scot/cases/ScotHC/2004/19.html