Scottish High Court of Justiciary Decisons

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Drummond Young Lady Clark of Calton	[2014] HCJAC 55   XJ893/13   OPINION OF THE COURT   delivered by LADY CLARK OF CALTON   in APPEAL AGAINST CONVICTION AND SENTENCE   BY STATED CASE   by   ANDREW FARRELL   Appellant;   against   PROCURATOR FISCAL GLASGOW   Respondent:   _____________

 

Appellant:  Tait;  Capital Defence, Edinburgh

Respondent:  Prentice, QC, AD; Crown Agent

 

26 March 2014

 

[1]        This is the appeal by Andrew Farrell.  In this case the appellant was convicted of a charge which libelled:

 

“(001)  on 27^th October 2012 and 28^th October 2012 at 285 Kingsacre Rd, Rutherglen, Glasgow you ANDREW FARRELL did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout and swear at Jennifer Farrell, your wife, residing there; CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.”

 

[2]        At the end of the Crown case a submission of no case to answer was made on behalf of the appellant but this was repelled by the sheriff.  Thereafter further evidence was led including evidence from the appellant. 

[3]        The submissions in relation to the appeal against conviction related to three main chapters which reflected the three questions by the opinion of the court namely:

“1.  Did I err in law in repelling the submission made on behalf of the appellant in terms of section 160 of the Criminal Procedure (Scotland) Act 1995?

 

2.  Was there sufficient evidence to entitle me to make findings 18) to 22)?

 

3.  On the facts stated was I entitled to convict the appellant?”

 

[4]        The principal evidence relating to the charge as libelled was given by the complainer.  She gave evidence about events commencing on 27 October 2012 when she said the appellant was drunk and abusive to her in various ways which she described in detail as set out in the sheriff's report.  The complainer became upset by abusive remarks and aggressive behaviour and retired upset to her bedroom.  Thereafter she decided to telephone the police and the police arrived at 1am on 28 October 2012.  When the police arrived, the appellant was asleep.  The complainer was very upset, had been crying and was shaking.  When the police woke the appellant who had been drinking, he was aggressive and abusive.  As he was led out in handcuffs he looked at the complainer and shouted “Fucking idiot”.  The evidence is set out in some detail in paragraphs 3 to 7 of the sheriff's report and is reflected in the findings in fact. 

[5]        In making his submissions, the solicitor advocate for the appellant did not insist on the first ground of appeal which related to the no case to answer submission.  He concentrated his submissions on the merits of the case against a background where it was accepted by the Crown that the sheriff had erred in finding the appellant guilty of the events libelled in the complaint in respect of the 27^th of October 2012.  In fairness to the sheriff, it should be noted that the sheriff conceded that was an error on his part. 

[6]        In the ground of appeal there is a challenge to findings in fact 18 to 22, but in presenting the appeal the solicitor advocate restricted his submissions to an attack in part on findings 20-21 only.  We note that there was never any challenge to findings in fact 1-17.  We note that finding in fact 17 states:  "As the appellant was being led away through the hall he turned to the complainer who was within his sight and shouted 'fucking idiot' at her in an aggressive manner".   According to the findings in fact found by the sheriff, the complainer was not robust mentally or physically.  It is plain from the findings in fact that the appellant was abusive, was under the influence of drink and was in handcuffs when he made the remarks directed to his wife, the complainer.  The Crown submitted that even on the basis of findings in fact 1 to 18 this was a case in which the sheriff was plainly entitled to convict of the offence libelled.  We have no difficulty in agreeing with that submission but in any event consider the sheriff was well founded in his conclusions reflected in findings 20-21. 

[7]        The third question relates to the issue whether the sheriff was entitled to convict the appellant on the facts stated as libelled.  As we have noted, the charge relates to events over 2 days, the 27^th of October and 28^th of October.  In paragraph 31 of his report the sheriff states: "On reconsideration it appears I should have limited the conviction to events on 28 October and not 27 and 28".  The advocate depute, conceded that.  We consider that the sheriff and the advocate depute were right in their recognition that the conviction should not have related to events on the 27^th of October.  That means that the facts on which the conviction is based must be restricted to reflect that concession.  We have considered the conviction on that basis. 

[8]        In relation to the questions posed in this appeal, we answer the first question in the negative.  We answer the second question in the affirmative.  We answer the third question also in the affirmative, but only in relation to the events on 28 October and we restrict the conviction accordingly.

[9]        We consider that the conclusions that we have reached in relation to the conviction means that we should reconsider the sentence imposed by the sheriff.  We note that the sheriff imposed a community payback order with a 2 year period of supervision and 100 hours of unpaid work.  He also imposed a non-harassment order for 2 years. The solicitor advocate invited us to reconsider only the number of hours of unpaid work.  We consider that it is appropriate to accept the submission.  We therefore interfere with the sentence only to the extent of quashing the 100 hours of unpaid work and we substitute 50 hours instead.