An Edinburgh man was convicted under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 after he entered a flat one floor above his own whilst naked.
It was argued on behalf of the appellant that the sheriff had erred in convicting him as he had no intention to cause fear and alarm to the individuals inside the flat. 
The Crown case led evidence from a 44-year-old woman and her two sons. They told the court that the appellant entered the flat through an unlocked door and that he was under the influence of alcohol. He was wet and had cut grass on parts of his naked body. He was described as cupping his genitals with his hands. Upon entering the flat the appellant attempted to enter one of the bedrooms. He was then taken out of the flat and did not attempt to physically resist. 
In giving evidence the appellant stated that he could not remember the incident and that he struggled with insomnia and he used alcohol to cope with this. At trial a submission of no case to answer was made on the basis that there was insufficient evidence that the appellant had behaved threateningly or abusively. The sheriff rejected this and found the appellant guilty. 
On appeal, it was argued that the sheriff had erred in repelling the no case to answer submission as he had not properly considered two of the three parts to the offence. It was submitted that the sheriff had to explain the aspect of the behaviour that could be deemed threatening or abusive. 
In providing the opinion of the court, Sheriff Principal Lewis stated: “There is no finding in fact that the appellant intended by his behaviour to cause fear or alarm. There is no finding in fact that the appellant was reckless as to whether the behaviour would cause fear or alarm. That essential aspect of the tripartite test for an offence in terms of section 38(1) is barely considered within the sheriff’s Note. There is nothing more than a bare assertion in one sentence that the appellant either intended to cause fear or alarm or was reckless as to whether his behaviour would cause fear or alarm.”
She continued: “Intention or recklessness in terms of section 38(1)(c) is an essential component of a section 38(1) offence. The absence of any relevant finding in fact or explanation as to the sheriff’s consideration and conclusions on this aspect of the test within the Stated Case causes us to conclude that this component part of a section 38(1) offence has not been adequately considered based upon the evidence and that a miscarriage of justice therefore arises.”
As a result, the appellant’s conviction was quashed.