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