[2015] HCJAC 78


Lady Paton

Lord Menzies

Lord Matthews


delivered by LORD MATTHEWS









Appellant:  Farquharson AD;  The Crown Agent

Respondent: Johnston, solicitor advocate;  McLennan Adam Davis, solicitors, Ayr

21 August 2015

[1]        This is a Crown appeal by stated case against a decision of the sheriff at Ayr, acquitting the respondent of a breach of a non‑harassment order made on 22 August 2013.  The gravamen of the charge was that, contrary to section 234A(4) of the Criminal Procedure (Scotland) Act 1975, the respondent breached the order by approaching the complainer on 18 November 2014.

[2]        Put shortly, the sheriff found that, while there was an encounter between the respondent and the complainer, it was a chance one of short duration and the respondent’s intention had not been to approach the complainer at all but to approach and say hello to the complainer’s child D, who was with the complainer at the time.  While the sheriff said that in terms of a strict definition of the word “approach” it might be said that the respondent had approached the complainer by closing the distance between them, he had lacked the necessary mens rea to approach the complainer and she found the charge not proven.


The legislation
[3]        In terms of section 234A(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.  It is an offence under section 234A(4) for a person to be in breach of a non‑harassment order.

[4]        In terms of section 234A(7), for the purposes of the section “harassment” and “conduct” are to be construed in accordance with section 8 of the Protection from Harassment Act 1997.  That section in turn provides (section 8(3)), that “conduct” includes speech and that “harassment” of a person includes causing the person alarm or distress.


The proceedings at first instance
[5]        The background as found by the sheriff, insofar as relevant, is that the respondent was made subject to a non‑harassment order on 22 August 2013 at Ayr Sheriff Court, in terms of which he was required to refrain from the conduct specified therein, in addition to refraining from approaching or contacting or attempting to approach or contact the complainer.  The order was still extant as at 18 November 2014.  On that day, the complainer collected her son D from school around 15:23.  He would normally have been out of school at 15:00 but a combination of factors delayed his discharge that day.  The complainer and the child were seen on CCTV in the school playground at 15:23:36, making their way towards a hole in a wall which led to a pathway and thereafter to Wreck Road, the locus of the alleged offence.  The respondent was seen five minutes later on CCTV walking across the playground towards the hole in the wall.

[6]        There was a supervision requirement in place restricting contact between the respondent and D but the respondent was permitted to say hello to him if there was a chance encounter between them.  On the relevant date the respondent would not have known that D had been delayed in leaving school.

[7]        The non‑harassment order relates only to the complainer and not to the child. 

[8]        We will set out finding in fact 8 in full, so far as relevant.  It is in the following terms: 

“When (the complainer) and D were in the small lane area between the hole in the wall and the school gates at Wreck Road, D was playing up, resisting his mother’s attempts to get him to walk beside her and thereafter climbing on the gates.  He ignored her request to come down from the gate and join her.  She turned to retrieve her son and in the course of going towards him the accused was noted coming through the hole in the wall area onto the pathway.  (The complainer) called out ‘there’s (the respondent)’.  She was trying to get D to walk faster.  (The complainer) and D and the accused encountered each other at that location.  (The complainer) took D’s hand, turned and quickly made her way onto (the locus).  The accused came quickly in the same direction, closing the distance between parties, and asked/tried to speak to D.  (The complainer) asked the accused to leave them alone and said that he should not be trying to speak to D.  Whilst the mother and son were holding hands the accused continued to follow behind them.  The mother told D to start walking faster.  (The complainer) and D walked a short distance along Wreck Road, stopped at the roadway briefly and then crossed to shops.  The accused was behind (the complainer) and D briefly on Wreck Road.  He did not cross Wreck Road.  He did not follow (the complainer) and D across the road.  He was nowhere to be seen when (the complainer) and D exited the shops a short time later.”


The sheriff reports that she repelled a submission of no case to answer and the respondent did not give evidence.  In a police interview he had denied that he had tried to approach the complainer.  He said that he had crossed the road and met his father and had passed the complainer at a distance of 30 to 40 yards.  He denied attempting to speak with the child whilst she had hold of him.

[9]        Before the sheriff the Crown submitted that the court should attribute an ordinary, common sense interpretation to the word “approach” and that the court would be entitled to infer that the respondent had approached the complainer, thereby breaching the order.

[10]      The defence position was that there was no breach.  There was a chance encounter between the respondent, the complainer and the child.  It was submitted that in order for the charge to be proved the court had to be satisfied both of the actus reus and the mens rea.  The defence did not concede that there was an “approach”, this being a “chance encounter” but even if the court took the view that it was an approach the Crown had not proved the accused’s intention to breach the order by approaching the complainer.  In evidence the complainer had said that she understood that the respondent’s “approach” was directed towards speaking or attempting to speak with the child.

[11]      The sheriff accepted the evidence of the complainer and in particular her evidence that her impression was that the respondent’s “approach” was to speak to the child.  It appeared to the sheriff that the complainer accepted that the encounter was a chance encounter, that the respondent would not have known that the child would have been released from school almost 30 minutes after his normal departure time and that the encounter was of short duration.  When parties emerged onto the main thoroughfare she and the child quickly crossed the road and went into shops.  They were not followed there by the respondent nor was he present when they emerged from the shops.

[12]      The sheriff found that the respondent was using a legitimate route onto the main thoroughfare and that the parties unexpectedly came into contact.  The sheriff inferred that, standing that it was permissible for the respondent to say hello to the child on a chance encounter, the request was not unreasonable but that thereafter the respondent did not persist.  The sheriff reasoned that the respondent followed the same route as was taken by the complainer and the child and the parties then went their separate ways.  Thereafter there was no element of pursuit.

[13]      She found that in terms of a strict definition of the word “approach” it might be said that the respondent, in closing the distance between himself and the complainer “approached” her.  However, she found that the Crown needed to establish the mens rea of the respondent.  Relying on the evidence of the complainer to the effect that the respondent was not “approaching” her but rather the child, she found that the Crown had not proved criminal intent.

[14]      The sheriff poses two questions in the Stated Case as follows: 

  1. Does the Crown require to establish mens rea on the part of the accused in this particular charge?
  2. Did the court err in finding the charge not proven?”


[15]      For the Crown, the advocate depute submitted that the case raised an important point of law.  It was not disputed by the Crown that it was a chance encounter, nor was it disputed that the respondent’s motivation was to speak to the child. 

[16]      Her initial submission was that mens rea did not require to be established at all.  When that proposition was explored with her she conceded that that stark proposition was not well founded.  She agreed that if, for example, when walking along a road and turning a corner a person bumped into someone whom he was forbidden to approach, it could not be said that that amounted to a crime.  Ultimately her position was that the only mens rea which was required was the intention deliberately to proceed in the direction of the other individual.  No further mental element was required.  Whether the steps taken towards the other individual amounted to an approach or not would be a question of facts and circumstances.

[17]      The sheriff had confused mens rea with motivation.

[18]      While the first question in the stated case required to be answered in the affirmative, it was only in relation to the limited mens rea which the Crown conceded was necessary.

[19]      The facts disclosed that there was initially a chance encounter but the respondent had thereafter deliberately moved in the direction of the complainer, albeit with a view to exchanging pleasantries with the child.  In holding that that intention on the part of the respondent amounted to a defence the sheriff had erred.

[20]      The motivation behind the commission of the offence was something which the sheriff could take account of in sentencing.

[21]      It was significant that the respondent had gone quickly in the same direction as the complainer and the child, closing the distance between them.

[22]      Reference was made to the case of Donaldson v Miller [2000] SLT 622 as authority for the proposition that a broad view had to be taken as to whether or not one individual was approaching another.

[23]      The second question in the stated case should also be answered in the affirmative.

[24]      In reply Ms Johnston agreed that mens rea was required.  It was material to consider to whom an approach was made.  There must, for a breach to be established, be a deliberate approach towards the person who was protected by the order.  If there was an innocent explanation for the respondent’s approach, such that he was wishing to speak to the child who happened to be beside the complainer, then that amounted to a defence.  A number of examples were put to her to test her submission.  She maintained that if an individual approached another individual in a shop in order to speak to her in breach of an order then that would be an offence but if the same individual deliberately took the same steps towards the second one with a view to buying a newspaper, for example, he would have a good defence to any charge of breaching a non‑harassment order.

[25]      The advocate depute had submitted that if a defence along these lines were to be open to an accused then the protection afforded by a non‑harassment order would be of no value.  If a person was intent on approaching a person whom he was forbidden to approach all he needed to do would be to wait until that person was in the company of someone else and then claim that he was approaching the latter.

[26]      Ms Johnston, however, submitted that if the court were not to allow such a defence it would be unjust.  The answer lay in the drafting of non-harassment orders.  There could, for example, be qualifications in terms of the distance which had to be maintained between individuals.

[27]      The purpose behind an order was to protect the person named in it.  In this case the sheriff had found that the respondent had not intended to approach that person at all.


[28]      In our opinion the submissions of the advocate depute are to be preferred.  We agree that the sheriff has confused the question of motivation with the question of mens rea.  The respondent was prohibited from approaching the complainer.  Finding in fact 8 makes it plain that he deliberately moved towards her albeit when she was with the child D.  This is doubtless an approach towards D but on no view could it be said not also to be an approach towards the complainer.  The respondent deliberately took that course of action.  The sheriff accepted that his intention in doing so was to speak to the child, as he was apparently entitled to do during a chance encounter, but we agree with the advocate depute that the intention or motivation behind taking the deliberate step of approaching the complainer is irrelevant for present purposes, although it might have a bearing on sentence.  Whether, in any particular set of circumstances, an accused person approached another person as a matter of fact can be determined by the application of common sense.  In the course of her argument Ms Johnston suggested that an individual could be accused of approaching Aberdeen when approaching Dundee.  We do not consider that anyone would seriously take that view and finding in fact 8 in the instant case is far removed from that scenario.

[29]      It is one thing if an individual approaches another without knowing that the person whom he is forbidden to approach is also there.  It is quite another when he knows full well that he is also approaching such a person.  In our opinion, if an individual is forbidden to approach person A he cannot get round that by approaching person B, whom he knows is standing next to or near to A.  Such a situation would make a mockery of non‑harassment orders and defeat their purpose entirely.

[30]      In order to prove breach of a non‑harassment order the Crown must show that the conduct took place.  In assessing that, the sheriff will require to consider all the facts and circumstances.  Whether an approach was made will depend, amongst other things, on the proximity of the parties at the material time.  The Crown also have to prove mens rea but only to the extent that it must be shown that the accused deliberately did the acts complained of, knowing, in the case of an approach, that he was in fact “approaching” or “nearing” the complainer.  The knowledge required in other circumstances depends on the type of conduct which is prohibited.

[31]      We answer the first question in the stated case in the affirmative, subject to the qualifications outlined above.

[32]      We also answer the second question in the affirmative.

[33]      We allow the Crown appeal and we shall remit the case to the sheriff with a direction to convict.

[34]      The matter of sentencing will be for her to consider.