AppliedSheriff Appeal Court14 August 2018
Orr v Mundell
[2018] SAC (Crim) 11 · [6], [10]
The court applied the objective section 38 test before refusing the conviction and sentence appeals.
Open later authorityScotland · Threatening or abusive behaviour
LJBD / CASE / 004 · Checked 1 August 2026
Paterson v Harvie
[2014] HCJAC 87
The proposition below is deliberately narrower than a general summary. Open the linked decision, read the paragraphs in context and check whether later or higher authority changes the point.
Issue before the court
What question did this decision answer?
Does section 38(1)(b) require proof that a real person actually suffered fear or alarm, or is it enough that the behaviour would be likely to cause a hypothetical reasonable person fear or alarm?
Precise proposition
Section 38(1) has three distinct constituents: threatening or abusive behaviour, objective likelihood of causing a reasonable person fear or alarm, and intention or recklessness concerning fear or alarm. Actual fear or alarm is not an element. The effect on an actual observer is legally irrelevant to section 38(1)(b), although evidence of reaction may still help prove what occurred and its context.
This wording is this site's synthesis of the identified reasons. It is not presented as a quotation unless the judgment itself is opened and the exact words are checked.
Paragraph guide
Where the reasoning lives.
Paragraph numbers are navigation aids. Read the surrounding facts, submissions and disposal before extracting a proposition.
- [1]
The statutory question and the three joined appeals.
- [8] to [18]
The facts and procedural history of the Paterson, Bow and Love appeals.
- [19]
The three constituents of section 38(1), separating conduct, objective likelihood and state of mind.
- [20] to [21]
The objective test, no requirement for actual fear or alarm, and completion of the offence when all statutory elements are proved.
- [22]
Contrast with stalking under section 39, which expressly requires actual fear or alarm.
- [23] to [24]
Jolly overruled on this point, Rooney approved and the interpretation grounds refused.
- [25] to [29]
Bow's corroboration ground and the statutory reasonableness defence.
- [30] to [35]
Answers to the stated-case questions and concurring opinions.
Result
What happened in this case?
All three appeals were refused. Bow's separate ground concerning corroboration was also refused.
Selected later treatment
How later authority used the point.
This is a recorded check, not a complete commercial citator. Each entry identifies the treatment actually found and the date of the overall note check.
AppliedInner House, Court of Session18 June 2026
Hirst v Chief Constable and Lord Advocate
[2026] CSIH 31 · [94] to [96], [106] to [112], [122] to [123]
In a malicious-prosecution pleading appeal, the Inner House treated Paterson as the authoritative construction of section 38 and held that prosecutors had an objectively reasonable basis to bring the charge concerning an online video. It did not determine criminal guilt.
Open later authorityScope of check: Open-source treatment check completed on 1 August 2026. No adverse treatment of the objective-test holding was located, but this is not a complete subscription citator.
Source register
Open the material that carries the weight.
Checked 1 August 2026. A broken link does not change the decision, but it does weaken this page as a public reading aid and should be reported for correction.
Official judgmentAppeals by Ewan Paterson, David Bow and Jamie LoveScottish Courts and Tribunals Servicehttps://www.scotcourts.gov.uk/media/yc3nrf2q/2014hcjac87-appeals-against-conviction-by-ewan-paterson-and-others-against-pf-airdrie.pdf↗Open judgment copyPaterson v Harvie [2014] HCJAC 87BAILIIhttps://www.bailii.org/scot/cases/ScotHC/2014/%5B2014%5DHCJAC87.html↗Official legislationCriminal Justice and Licensing (Scotland) Act 2010, section 38Legislation.gov.ukhttps://www.legislation.gov.uk/asp/2010/13/section/38↗