BARTKUS AGAINST PROCURATOR FISCAL, GLASGOW

[1] On 16 October 2014 the appellant was convicted at Glasgow Sheriff Court of a charge that between 9 February 2014 and 26 February 2014 at a shop known as Boux Avenue, Silverburn Shopping Centre, Barrhead Road, Glasgow, he conducted himself in a disorderly manner, asked a member of staff inappropriate questions relating to women’s underwear,

[9] The relevant test is, as the sheriff indicated, set out by Lord Coulsfield in Smith v Donnelly , supra , at paragraphs [17]-[18]. In that passage it is made clear that something substantially greater than mere irritation is involved:

“What is required… is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person” (paragraph [17]).

[10] It can be said that the conduct involved in the present case is at the lower end of conduct amounting to a breach of the peace; that was expressly conceded by the Crown. Nevertheless that is a matter that can be reflected in sentence. For the foregoing reasons we will answer the second question in the stated case, whether the sheriff erred in law in convicting the appellant of a breach of the peace, in the negative. As already mentioned, the first question is no longer live.