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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> ANDREW BUCHAN v. PROCURATOR FISCAL, HAMILTON [2013] ScotHC HCJAC_118 (11 September 2013) URL: http://www.bailii.org/scot/cases/ScotHC/2013/2013HCJAC118.html Cite as: [2013] ScotHC HCJAC_118 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lady PatonLady Dorrian Lord Wheatley
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[2013] HCJAC 118 XJ516/13
OPINION OF THE COURT
delivered by LADY PATON
in
APPEAL BY STATED CASE
by
ANDREW BEHAN
Appellant;
against
PROCURATOR FISCAL, HAMILTON
Respondent:
_____________ |
Appellant: Gill, Solicitor Advocate; Paterson Bell
Respondent: T Niven Smith, AD; Crown Agent
11 September 2013
[1] The
parties four year relationship broke down, and they separated in
September 2011. The circumstances of the breakdown were relevant to the
subsequent texts sent by the appellant to the complainer some 14 months
later. Thus, in our opinion, the sheriff was entitled to take into account
evidence volunteered by the complainer that the appellant had, at the end of
the relationship, assaulted her and her child, and that the separation had been
acrimonious with no suggestion of reconciliation. No evidence was led as to
whether the complainer's allegations of an assault had led to a conviction.
[2] Further
relevant evidence, in our opinion, was the fact that the parties then remained
separated without any contact for a period of about 14 months. It was
entirely appropriate in our view that the sheriff should take into account
evidence about a bail condition that the appellant should not approach or
contact the complainer. It is of note that the bail condition was terminated
in about November 2012.
[3] Against
that background, there was evidence that at least two texts from the appellant
were received by the complainer on 24 and 25 December 2012, one on
her private mobile and one on her business mobile (the number of which she had
thought was unknown to the appellant). One text stated "Have a happy and good
life I truly mean that". Another stated "Have a good life. I hope you be
happy. Bye xx". Despite the apparently benign appearance of these texts,
there was evidence from the complainer, and from a police officer, of the complainer's
resultant alarm and upset on receiving those texts.
[4] The
sheriff repelled a "no case to answer" submission (a decision challenged today)
and convicted the appellant of a contravention of section 39 of the
Criminal Justice and Licensing (Scotland) Act 2010, which is a stalking
offence. The grounds of appeal against conviction as follows:
"The sheriff erred in repelling the submission of no case to answer. S39(3) states that this subsection applies where the accused engages in the course of conduct with the intention of causing (B) to suffer fear and alarm; s39(4) states that this subsection applies where the accused knew, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause (B) to suffer fear or alarm. There was insufficient evidence from which the sheriff was entitled to infer the accused's intention was to cause the complainer fear or alarm. In repelling the submission, the sheriff made reference to a previous assault by the accused on her and her daughter, and there was some weight put on the fact that this was unchallenged. The appellant does indeed have such a conviction, and the sheriff has misdirected herself by giving weight to this unelicited evidence, whereas the sheriff should have disregarded this particular part of the evidence."
[5] Miss Gill,
for the appellant, emphasised the fact that the contents of the texts were benign.
The context in which they were sent was the festive period. The sheriff should
not have taken into account evidence about the bail condition, nor should she
have taken into account evidence volunteered by the complainer that there had
been an assault at the end of the relationship, and that the parting had been
acrimonious with no suggestion of a reconciliation.
[6] In our
opinion, the sheriff was, first, entitled to take into account evidence about
the acrimonious nature of the breakdown of the relationship, including the
evidence volunteered by the complainer that she and her child had been assaulted
by the appellant. The question of any conviction was not gone into, and it
would have been, in our view, artificial and unrealistic for the sheriff not to
take into account such evidence as there was about the nature and circumstances
of the breakdown.
[7] Secondly,
the sheriff was entitled on the evidence to conclude that the sending of such
texts after a 14 month period without contact, during which the appellant
had been prohibited by a bail condition from contacting or approaching the
complainer, gave rise to at least two inferences namely, either the appellant
intended to cause the complainer fear or alarm, or he ought to have known that
such texts would cause fear and alarm. Thus there was, in our opinion,
sufficient evidence entitling the sheriff to repel the "no case to answer"
submission, focussing as it did on section 39(4) of the Act.
[8] Defence
evidence might well have rebutted or neutralised these inferences, but until
such evidence was led, the sheriff was entitled take the Crown case at its
highest, and to find that there was a case to answer. As the advocate depute
pointed out in the course of his submissions, Parliament has specifically
provided for certain abusive behaviour such as stalking, which may cause a
particular individual fear or alarm, although it might not cause the average
member of the public such fear and alarm. In our view, that very appropriately
summarises the purpose underlying the legislation.
[9] In the
result, we answer the questions posed at page 6 of the stated case as
follows: Question 1 in the negative, and Question 2 in the negative.
The appeal is refused.
Aud