APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Drummond Young Lord Marnoch	[2013] HCJAC 33 XJ731/12, XJ732/12 and XJ733/12   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   NOTES OF APPEAL AGAINST SENTENCE and BILLS OF SUSPENSION   by   DONALD KERGAN   Appellant;   against   PROCURATOR FISCAL, GLASGOW   Respondent:   _____________

 

Appellant: CM Mitchell; John Pryde & Co

Respondent: M Stuart, AD; the Crown Agent

 

28 February 2013

[1] On 3 and 18 May and 1 June 2011, the appellant pled guilty to three charges, each libelling contraventions of section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995; notably that, having been granted bail on 28 February 2011, and being subject to a condition that he did not enter 90 [C] Street, Glasgow he did, on three separate occasions, in particular 1, 17 and 31 May, fail to comply with that condition and did enter that address. The libel of one complaint narrated that the bail conditions also included a prohibition on approaching his ex-partner, who lived at the address, which is a multi-storey block of flats. However, as was pointed out by the appellant, none of the offences involved a breach of that condition. After the recording of the pleas of guilty, the court deferred sentence on the appellant on a large number of occasions and sentence was only pronounced on 18 July 2012, when the sheriff fined the appellant £50 in respect of each complaint and imposed a non-harassment order for a period of five years prohibiting the appellant from entering the same address in Glasgow and from contacting his ex-partner.

[2] Although the offences are perhaps self-explanatory, in summary, the first occasion involved the concierge of the block becoming aware that the appellant was inside. She contacted the police who arrived, traced the appellant nearby and arrested him. He explained to the police that he had been attempting to deliver a birthday card to his son, presumably at his ex-partner's flat. On the second and third occasions the police chanced to be in the building on unrelated matters and, on each occasion, came across the appellant on the eighth floor landing. That is where his ex-partner's flat was located.

[3] In mitigation, the sheriff was advised that, prior to the offences, the appellant had suffered a serious fall. He used crutches to get about. By the time of sentencing, his mobility had become so restricted that he was confined to a wheelchair. He had moved to a different area of the city and had not breached the conditions of bail for a period of some fourteen months. On the other hand, he had an extensive criminal record involving, amongst other things, repeated breaches of bail conditions and sundry offences of dishonesty.

[4] By Note of Appeal, the appellant complained that "in all the circumstances" the imposition of a non-harassment order was "not appropriate" and that "the duration of any such order is excessive". Leave to appeal was refused at first sift, but granted at second sift, when the judges considered that "there may be an arguable question whether the offences constituted offences in respect of which a non-harassment order might competently be made in terms of section 234A(1)" of the 1995 Act. This somewhat cryptic new ground of appeal was not expanded upon and the sheriff was not asked to comment upon it by the second sift judges. When the appeal called for a hearing on 26 October 2012, the court expressed the view that the matters raised by the second sift judges, might more properly be addressed by way of a Bill of Suspension. The appeal was continued and, in due course, Bills raising the point of competency were thereafter lodged. At a subsequent procedural hearing the court requested the views of the sheriff on the new point.

[5] At the conjoined hearing of both the appeals and the Bills, it was submitted by the appellant that, in order to impose a non-harassment order, it was first necessary, in terms of section 234A(1), that there be "misconduct towards" a person, namely the victim. Secondly, in terms of section 234A(2), it was necessary that it be "appropriate" for the order to be made "to protect the victim from harassment". It was said that, first, the sheriff had erred in holding that there had been misconduct towards anyone, given that the offences had simply involved the appellant being in the block rather than any conduct targeted at a person actually present. Secondly, the sheriff had misdirected herself on the question of appropriateness, given the lapse of a period of fourteen months without incident since the date of the last offence. In that regard a non-harassment order had not been necessary "in order to protect the victim". Finally, it was submitted that the length of period selected by the sheriff was excessive and, in particular, was not proportionate having regard to the lapse of time and the appellant's present immobility.

[6] The condition which was imposed, as part of the bail order, not to enter the address at [C] Street, was designed to protect the ex-partner. Entering the block where the ex-partner lived would normally amount to "misconduct towards" that person in absence of any acceptable alternative explanation. The fact that the appellant's ex-partner chanced not to be at home does not affect the direction of the appellant's conduct. The only reason for the appellant being in the block was to encounter his ex-partner for one reason or another. Having regard to the repeated breaches by the appellant, the conduct was such that the sheriff was entitled to take the view that it was appropriate to make the order as a measure designed to protect his ex-partner. As the sheriff noted, the appellant had appeared on the eighth floor landing despite requiring to mobilise on crutches. The sheriff was entitled to conclude that he might continue to seek to encounter his ex-partner despite being confined to a wheelchair. Although the period selected by the sheriff appears, on the face of it, to be a lengthy one, the court is unable to conclude that it is excessive, having regard to the appellant's repeated breaches of the condition and his record for breaching other court orders in the past. For these reasons the appeals will be refused.

[7] Two further matters require comment. First, in relation to the decision at second sift to grant leave to appeal on a new ground, namely, one of competency, the court observes that it is appropriate, in normal circumstances, for the court to remit an appeal to the first instance court for a supplementary report where a new ground of appeal is advanced at the sift stage. That was not initially done in this case and it resulted in a significant delay in the appeal being heard. Secondly, when the case first called for a hearing, it appears to have been suggested that a matter of competency, relative to sentence, ought more properly to be dealt with by way of Bill of Suspension. The court does not consider that that is a correct statement of the appropriate procedure. Raising a matter of competency in relation to a sentence by way of a Note of Appeal is an entirely normal procedure and this case could, and should, have proceeded on the grounds of appeal for which leave had been given. The court allowed the Bills to be withdrawn on the basis that the point of competency was one for which leave had already been granted.

 

 

 

DL