IN APPEAL BY S.J.S. AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 64
HCA/2015-001057-XC
Lord Brodie
Lady Clark of Calton
OPINION OF THE COURT
delivered by LORD BRODIE
in
APPEAL
by
S J S
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Martin, sol adv; Martin Johnston & Socha, Dunfermline
Respondent: Bain AD; Crown Agent
8 July 2015
[1] The appellant was convicted after trial on indictment of the following charge:
“(001) on various occasions between 19 May 2012 and 20 September 2013, both dates inclusive, at [specified addresses] and elsewhere you SJS did engage in a course of conduct which caused KMG, c/o The Police Service of Scotland, fear and alarm in that you did repeatedly contact her by email, text message and telephone, post correspondence to her, repeatedly attend at her home address and repeatedly kick her door, stand in front of a car she was driving and make threatening and abusive comments and gestures to her:
CONTRARY to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010”
[2] In his report to this court the sheriff explains that the evidence led at trial disclosed that the appellant and the complainer, KMG, are married. They separated in May 2012. They have three children, A, B and C. In a series of incidents between 19 May 2012 and 20 September 2013, the appellant caused significant distress to the complainer and her children. His behaviour included contacting her by phone, text and emails; attending at her home; repeatedly kicking her door; standing in front of her car and making threatening and abusive comments. The complainer and her children had given evidence. It was clear from that evidence that the complainer was terrified of the appellant. It was clear to the sheriff from the evidence of the children A and B that they also were frightened of the appellant and wanted nothing more to do with him.
[3] Having obtained a criminal justice social work report, the sheriff imposed a community payback order in respect of the appellant with a requirement that he undertake 240 hours of unpaid work. In addition, having been satisfied on the balance of probabilities that it was appropriate to protect the complainer and her children from further harassment at the hands of the appellant, the sheriff made a non-harassment order, purportedly in terms of section 234A of the Criminal Procedure (Scotland) Act 1995 for a period of three years. The terms of the order were to require that the appellant refrain from approaching or contacting or attempting to approach or contact KMG, A, B or C in any way.
[4] The appellant appealed to this court. The ground in respect of which he was granted leave to appeal was that the non-harassment order was inappropriate and excessive in relation to the children A, B and C. That ground is developed in the appellant’s written case and argument by reference to the difficulties anticipated by reason of the making of the non-harassment order in respect of family proceedings for contact.
[5] Although the point had not been taken on behalf of the appellant in the ground of appeal when the case called, the court enquired of parties whether it was accepted that the sheriff had power to make a non-harassment order in the terms that he did. Mr Martin, on behalf of the appellant, indicated that he had doubts about the matter although he acknowledged that he had not taken the point in his grounds of appeal. Competency is, however, pars judicis. We accordingly asked to be addressed on the matter by the advocate depute. Having heard the advocate depute we were satisfied that the sheriff did not have power to make a non-harassment order in respect of conduct towards the children A, B and C. We accordingly quashed the order and substituted an order restricted to conduct in respect of the complainer KMG. Our reasons are as follows.
[6] Section 234A of the Criminal Procedure (Scotland) Act 1995 is in the following terms:
“(1) Where a person is convicted of an offence involving misconduct towards a person (‘the victim’) the prosecutor may apply to the court to make a non-harassment order against the offender requiring him to refrain from such conduct in relation to the victim as may be specified in the order for such period (which includes an indeterminate period) as may be so specified, in addition to any other disposal which may be made in relation to the offence.
(2) On an application under subsection (1) above the court may, if it is satisfied on a balance of probabilities that it is appropriate to do so in order to protect the victim from harassment (or further harassment), make a non-harassment order”.
[7] As appears from section 234A the court may make a non-harassment order (in addition to any other disposal made in relation to the offence) if an application is made in terms of subsection (1) and the court is satisfied that on a balance of probabilities it is appropriate to do so in order to protect “the victim” from harassment. An application may be made under subsection (1) if, but only if, a person is convicted of an offence involving misconduct towards the victim. There is therefore a threshold requirement to be met before the court can exercise the power conferred by section 234A(2). That is that the convicted person has been convicted of “an offence involving misconduct towards ….the victim”. Equally, in exercise of the power, the court may only make an order if it is appropriate to do so in order to protect “the victim”. The questions that therefore arise before the power can be exercised are what is “an offence involving misconduct towards…the victim” and who is “the victim” for the purposes of section 234A.
[8] We do not question that the sheriff was entitled to come to the view on the basis of the evidence which had been led before the jury that the children had been adversely affected by the misconduct of the appellant, that that misconduct could be regarded as harassment (as defined by section 234(7) of the 1995 Act under reference to section 8 of the Protection from Harassment Act 1997) and that there was a basis for apprehending that the children might be further harassed. That, however, does not determine the question as to whether the sheriff had power to make an order in respect of the children. The indictment originally contained a charge of contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 in relation to a specific incident which named the children A and B as persons at whom the appellant shouted. That charge was, however, withdrawn by the prosecutor. The only charge in respect of which the appellant was convicted, that being charge 1, makes no mention of any of the children. While we understand that the children gave evidence in support of the allegation contained in the charge, and we proceed upon the basis that the children were witnesses to the conduct described there, we do not see charge 1 as specifying “an offence involving misconduct towards” the children. Rather, it is an offence involving misconduct towards KMG. We do not go the distance of saying that a “victim” for the purposes of section 234A must necessarily have been a person specifically referred to by name in the charge in respect of which the accused has been convicted but, in our opinion that a charge can be relevantly framed without any mention of a particular person points away from the offence specified in the charge being “an offence involving misconduct towards” that person. It follows, in our opinion, that even if the children in the present case were distressed by the conduct specified in charge 1 and, indeed, might be said to be harassed by it, they cannot be regarded as victims as the term “victim” is used in section 234A(2). It follows from that that while the sheriff did have power to make an order in respect of KMG, he did not have power to make an order in respect of A, B or C.
[9] In attempting to persuade us that the sheriff did have power to make the order in the terms that he did, the advocate depute referred us to the case of Robertson v Vannet 1999 SLT 1081. In that case it had been argued that it had been incompetent to make an order prohibiting the appellant from contacting his former girlfriend’s father where it appeared that, when the appellant made the telephone calls complained of he would speak to his girlfriend and that in the course of speaking to her he would make threats to her and to her father. The appellant did not actually speak to the father. In these circumstances it had been submitted that the father was not “a victim” in terms of section 234(A)(1). That argument was rejected. The opinion of the court (delivered by Lord Justice General Rodger) in Robertson v Vannet included the following:
“For the purposes of s 234A(1) ‘harassment’ includes ‘causing the person alarm or distress’ (subs (3)). The appellant pled guilty to making telephone calls ‘threatening violence to’ both Miss Donald and her father on a number of occasions. In his report the sheriff recounts that one of the reasons which the procurator fiscal gave for seeking the order was ‘the fears of the two witnesses’. As counsel accepted, this shows both that the father knew of the threats directed at him and that they aroused fear in him. That being so, he was ‘a victim’ in terms of section 234A(1)”.
The charge referred to by the Lord Justice General had been one of breach of peace where the narrative included the allegation that the accused had threatened violence to his girlfriend and her father, both of whom were named. The argument which Lord Rodger was addressing would therefore appear to have been to the effect that that was not enough if the father had not been threatened directly. Lord Rodger deals with it by pointing to the information which had been available to the sheriff when he made the non-harassment order that the father knew of the threats and that they had aroused fear in him; “that being so, he was ‘a victim’ in terms of section 234A (1)”. In our opinion the last two sentences in the passage that we have quoted from the opinion of the court in Robertson must be understood by reference to their context and, in particular, the context provided by the immediately preceding sentences. The father was a victim because he knew of the threats and was consequently fearful and therefore was “a victim” but that was in a context where one of the charges to which the accused had pled guilty had specifically libelled the threatening of violence to “said Catherine Donald and said Thomas Donald”, Thomas Donald being the father of the accused’s girlfriend, Catherine Donald. Lord Rodger describes counsel for the appellant in Robertson having “presented his points succinctly”. The law report does not identify the precise focus of the objection to the competency of the making of an order in respect of Thomas Donald but it would seem to have been that, once it was accepted that only Catherine Donald had received the telephone calls, the accused’s misconduct was not “towards” her father in the sense of having some impact upon him and therefore he was not a victim. The information referred to by Lord Rodger provided a complete answer to that point and, taken with the terms of the charge, removed any question as to whether it had been open to the sheriff to make a non-harassment order. However, the decision in Robertson does not mean that simply because the court has heard evidence of misconduct on the part of the accused that can be regarded as having been directed “towards” some person or another, it is open to the court to consider whether to make a non-harassment order in respect of that person in the event of the accused being convicted of an offence where, on the face of the charge, that offence has nothing to do with that person. In our opinion unless the relevant offence, as it is libelled, can be said necessarily to involve misconduct towards a particular person, the court cannot make a non-harassment order in respect of that person.