Man who made ‘inappropriate comments’ to lingerie store staff loses appeal against breach of the peace conviction

LordDrummondYoungA man who placed staff in a lingerie store in a state of “fear and alarm” after asking “wholly inappropriate” questions and telling a worker he wore fishnet stockings at home has had an appeal against his conviction for breach of the peace refused.


The Criminal Appeal Court ruled that the sheriff applied the “proper test” in concluding that the appellant’s conduct would be “genuinely alarming and disturbing to a reasonable person”.


Lord Brodie, Lord Drummond Young and Sheriff Principal Pyle heard that the appellant Francis Bartkus was convicted at Glasgow Sheriff Court in October 2014 of a charge of conducting himself in a “disorderly manner” at a shop known as Boux Avenue in the Silverburn Shopping Centre.


The court was told that on four separate occasions over a period of five days in February 2014 he entered the store and asked members of staff inappropriate questions relating to women’s underwear.


On one occasion, he asked a shop worker whether she wore children’s clothing while staring at her breasts.


During other visits to the shop, he followed members of staff and made comments about the kind of women’s clothing that he liked to wear, making them feel “uncomfortable” and placing them in “alarm” by his conduct.


He told one employee what size of women’s clothing he wore and told her that while working on his computer in his house he would wear a skirt and fishnet stockings.


It was submitted to the sheriff that the appellant’s conduct did not amount to a breach of the peace. The conduct had been described as making witnesses uncomfortable and uneasy, and was inappropriate, but it did not result in a call to the police.


However, the sheriff found that the appellant had entered the shop and stayed for a period of time beyond the normal, following young female members of staff around at their place of work and making “inappropriate comments”.


No evidence of any purchase had been produced, and the sheriff considered that such conduct would be sufficient to be “genuinely alarming and disturbing to a reasonable person”, as it was to the four workers.


One the basis of the findings in fact, the sheriff found the appellant guilty of a breach of the peace at common law. In explaining his decision, he stated that he found each of the four Crown witnesses to be credible and reliable, and rejected any suggestion of prejudice towards transgender people.


The appellant appealed against his conviction, and the critical question in the stated case was whether the sheriff erred in law in convicting the appellant of a breach of the peace.


However, the appeal judges held that the conduct described by the sheriff could properly be described as “genuinely alarming and disturbing” to the four employees in the shop and to any reasonable person.


“It went well beyond conduct that was merely irritating or uncomfortable,” Lord Drummond Young added.


The relevant test is “conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person”.


Delivering the opinion of the court, Lord Drummond Young said: “In the present case the sheriff applied that test, and concluded that the appellant’s conduct was of sufficient gravity to be ‘genuinely alarming and disturbing to a reasonable person’, as it was to the four Crown witnesses. That is an application of the proper test.


“On four separate occasions over a period of about five days the appellant entered a shop selling women’s underwear and followed and spoke to young female employees without any intention of purchasing goods, acting towards them in a manner that was plainly inappropriate. When that conduct is considered objectively, we are of opinion that it could readily cause disturbance and alarm in a reasonable person.


“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.”

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