This case comment will consider and evaluate the importance of M (K) v Procurator Fiscal
Edinburgh1 and its importance within criminal procedure, more specifically, in application to s.38
of the Criminal Justice and Licensing (Scotland) Act 20102. The first section will define
‘threatening or abusive behaviour’ under s.38 before briefly outlining the key facts of the case.
Then, M (K) will be considered alongside, with comparative points drawn, to DPP v Smith3 and
Hughes v Crowe4. Finally, the ratio decidendi will be dissected for further analysis, detailing the
implications that may arise whilst convicting under s38 and how further refinement may remove
any remaining ambiguities, ensuring justice and mitigating the chances of a miscarriage of justice
arising.
Section 38 (1) of the Criminal Justice and Licensing (Scotland) Act 2010 creates the offence of
acting in a ‘threatening or abusive’ manner. A person commits an offence if they behave in a
‘threatening or abusive’ manner which would be likely to cause a reasonable person fear or alarm
and they intended or were reckless to such behaviour causing harm. This tripartite test was
confirmed in Paterson v Harvie5 as the elements that are required to be satisfied to secure a
conviction. In the case of M (K), the appellant entered his neighbours flat around 11pm through
the unlocked front door; uninvited, naked and intoxicated. The appellant attempted to enter a
bedroom before being restricted and moved by the occupier. There was no attempt made to resist
this from the appellant who left quietly, without behaving aggressively and any words said being
incoherent. The appellant raised a no case to answer submission based on the evidence, stating that
his behaviour did not constitute ‘threatening or abusive’; this was repelled by the Sheriff based on
an objective standard. Here, the court agrees that the Sheriff did not err, the error instead arises
from the Sheriffs omission to follow the guidelines set in Wingate v McGlennan6 following a no
case to answer submission, paired with the unsatisfied mens rea outlined in s.38(1)(c), leading to
1 M (K) v Procurator Fiscal Edinburgh [2022] SAC (Crim), [2022] S.C.C.R. 148
2 Criminal Justice and Licensing (Scotland) 2010 Act (Asp 13)
3 DPP v Smith [2017] EWHC 3139 (Admin)
4 Hughes v Crowe [1993] S.C.C.R. 320
5 Paterson v Harvie [2014] HCJAC 87
6 Wingate v McGlennan [1991] S.C.C.R. 133 (HC)
Edinburgh1 and its importance within criminal procedure, more specifically, in application to s.38
of the Criminal Justice and Licensing (Scotland) Act 20102. The first section will define
‘threatening or abusive behaviour’ under s.38 before briefly outlining the key facts of the case.
Then, M (K) will be considered alongside, with comparative points drawn, to DPP v Smith3 and
Hughes v Crowe4. Finally, the ratio decidendi will be dissected for further analysis, detailing the
implications that may arise whilst convicting under s38 and how further refinement may remove
any remaining ambiguities, ensuring justice and mitigating the chances of a miscarriage of justice
arising.
Section 38 (1) of the Criminal Justice and Licensing (Scotland) Act 2010 creates the offence of
acting in a ‘threatening or abusive’ manner. A person commits an offence if they behave in a
‘threatening or abusive’ manner which would be likely to cause a reasonable person fear or alarm
and they intended or were reckless to such behaviour causing harm. This tripartite test was
confirmed in Paterson v Harvie5 as the elements that are required to be satisfied to secure a
conviction. In the case of M (K), the appellant entered his neighbours flat around 11pm through
the unlocked front door; uninvited, naked and intoxicated. The appellant attempted to enter a
bedroom before being restricted and moved by the occupier. There was no attempt made to resist
this from the appellant who left quietly, without behaving aggressively and any words said being
incoherent. The appellant raised a no case to answer submission based on the evidence, stating that
his behaviour did not constitute ‘threatening or abusive’; this was repelled by the Sheriff based on
an objective standard. Here, the court agrees that the Sheriff did not err, the error instead arises
from the Sheriffs omission to follow the guidelines set in Wingate v McGlennan6 following a no
case to answer submission, paired with the unsatisfied mens rea outlined in s.38(1)(c), leading to
1 M (K) v Procurator Fiscal Edinburgh [2022] SAC (Crim), [2022] S.C.C.R. 148
2 Criminal Justice and Licensing (Scotland) 2010 Act (Asp 13)
3 DPP v Smith [2017] EWHC 3139 (Admin)
4 Hughes v Crowe [1993] S.C.C.R. 320
5 Paterson v Harvie [2014] HCJAC 87
6 Wingate v McGlennan [1991] S.C.C.R. 133 (HC)
