This essay about the case of Baig v Harvie [2015]. The case concerns an appeal from a man who was previously convicted under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 for abusive and threatening behaviour directed towards two parking attendants. The appellant’s appeal centres on the fact that his improper conduct was only verbal and that he had not been proven to have caused fear or alarm to the attendants. This essay will explain the terms of section 38, how they apply to the facts of this case and discuss some issues with the defence laid out in Subsection 2. It will also critique the defences provided by Baig and explain why the decision was correctly upheld.
Section 38 details the crime of threatening or abusive behaviour. Section 38 (1) outlines the three main elements of the offence. The first element is that the accused has behaved in a threatening or abusive manner and this is expanded upon by subsection (3) which states that this can be either physical or verbal and be a single act or a sustained course of conduct. The second element of the offence is that actions taken would be likely to cause a reasonable person to suffer fear or alarm. This …show more content…
If the accused can prove that their behaviour was ‘reasonable’ in the circumstances then they will not be convicted. Given the potential breadth of this defence, it is interesting to consider what kind of circumstances would be deemed ‘reasonable’ for a person to use threatening or abusive behaviour. In Urquhart v HMA [2015] the accused attempted to claim self-defence, however the judge in that case ruled that self-defence would mean intent to cause fear or alarm and that because of this, it was not valid as a defence for this offence. This ruling begs the question of what circumstances would have to be present for the subsection 2 defence to apply, if in fact there are
Section 38 details the crime of threatening or abusive behaviour. Section 38 (1) outlines the three main elements of the offence. The first element is that the accused has behaved in a threatening or abusive manner and this is expanded upon by subsection (3) which states that this can be either physical or verbal and be a single act or a sustained course of conduct. The second element of the offence is that actions taken would be likely to cause a reasonable person to suffer fear or alarm. This …show more content…
If the accused can prove that their behaviour was ‘reasonable’ in the circumstances then they will not be convicted. Given the potential breadth of this defence, it is interesting to consider what kind of circumstances would be deemed ‘reasonable’ for a person to use threatening or abusive behaviour. In Urquhart v HMA [2015] the accused attempted to claim self-defence, however the judge in that case ruled that self-defence would mean intent to cause fear or alarm and that because of this, it was not valid as a defence for this offence. This ruling begs the question of what circumstances would have to be present for the subsection 2 defence to apply, if in fact there are