Schizophrenia sufferer who made vile comment removed from sex offenders’ register

About this case:

• Citation:
  [2026] SAC (Crim) 7
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Temporary Sheriff Principal Eilidh MacDonald

It was argued by the complainer, Steven Clelland, who was charged with a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, that his behaviour had been caused by his mental disorder and was not motivated by a genuine desire to molest a child. The Crown maintained that there had been a significant sexual element to the offence and the sheriff was entitled to reach that conclusion.

The appeal was heard by Temporary Sheriff Principal Eilidh Macdonald, with Appeal Sheriffs Christopher Shead and Norman McFadyen KC. Deans, advocate, appeared for the complainer and Cameron KC, advocate depute, for the Crown.

Delusional beliefs

On 16 March 2022, the complainer was approached on Caledonian Road in Larkhall by WG, the father of an 11-year-old girl whom the complainer had previously attempted to speak to at her school. WG asked the complainer to stop speaking to children at the school because it was upsetting them. The complainer immediately shouted towards WG that his “13-year-old whore of a daughter” wanted him to molest and rape her, which he continued to repeat while pointing in the direction of the address where WG’s daughter lived with her mother.

WG was able to flag down police officers on mobile patrol in the area, who spoke to the complainer. He repeated his comments to the police, including after they arrested him and took him to the police station. At a first diet in March 2022 the complainer tendered a plea of not guilty, but the trial was adjourned to allow for him to be psychiatrically assessed. A report by a consultant psychiatrist, Dr Bett, concluded that the complainer suffered from schizophrenia but was fit to stand trial, albeit any evidence he gave would be undoubtedly influenced by his delusional beliefs.

The sheriff concluded that, whether his belief arose from his mental disorder or otherwise, the complainer’s offence had a significant sexual element to it, and that he believed at the time that the child wished to be sexually molested by him. It was submitted that the complainer’s motivation for the offence was based on a delusion rather than sexual desire or gratification, and the complainer did not wish to have sexual relations with an 11-year-old child.

For the complainer it was further submitted that it was noteworthy that he had several convictions of a similar nature, including one with a racial aggravation. The Crown submitted that the circumstances could be distinguished from those in Buchanan v Brown (2024), where repeated threats of rape towards a 19-year-old female police officer had been done solely for the purpose of verbal abuse. Dr Bett had opined that no special defence under section 51A of the Criminal Procedure (Scotland) Act 1995 was available, nor was he unfit for trial. In the circumstances, the conduct had a significant sexual aspect to it.

Arose from psychosis

In her opinion, with which Appeal Sheriff Shead agreed, Temporary Sheriff Principal Macdonald said of the sheriff’s core reasoning: “She accepted that the complainer believed that the child wanted to be sexually molested by him. Whether that belief arose from a mental disorder or otherwise the effect was the same. Proceeding on that basis she concluded that the sexual aspect of the offence was significant, because he had acted on his belief by committing an offence which included the uttering of threats of sexual violence. As the sheriff put it, ‘it meant that the threat of sexual violence was not simply an empty one but there was a real potential of danger posed by the complainer’.”

She later added: “The sheriff’s approach was to say that the circumstances of the offence involved the uttering of threats of sexual violence. In my opinion, despite the terms of the plea, that it is not the way the complainer’s utterances can properly be viewed. As counsel submitted the complainer felt aggrieved at what he believed had been said to him. The repellent way in which he chose to express that feeling constituted a contravention of section 38(1). In considering the circumstances it is instructive to bear in mind that the witnesses misconstrued what the complainer had said. In the sheriff’s view that illustrated ‘the serious nature of the threat’. I respectfully disagree.”

Considering the effect of the complainer’s mental disorder, Temporary Sheriff Principal Macdonald concluded: “Taking into account all of the information before the court, I conclude that the words used were not an expression of sexual desire or interest by the complainer, did not arise from a sexual deviance, and, therefore, the offending behaviour does not disclose that there was a significant sexual aspect to it which would warrant the additional sentencing measures of certification required to protect from the risk of sexual offending posed by the complainer. Instead, the information before the court indicates that these words, this expression of false belief, most likely arose from psychosis given the complainer’s history of mental health problems. There was therefore not a significant sexual aspect to the offending.”

However, in a dissenting opinion, Appeal Sheriff McFadyen said: “Taking a common-sense approach to what occurred here, the complainer made highly sexualised remarks about an 11-year-old child, such as to make it apparent that he harboured (for whatever reasons) and was prepared to express to her father deviant beliefs as to her wish to engage in unlawful and violent sexual activity. Accepting that the evidence would indicate that he had no intention to indulge in such activity, the fact that he could express such aberrant and deviant beliefs to the child’s father seems sufficiently indicative of a significant underlying sexual disorder or deviance from which society requires to be protected such as fully to justify the sheriff’s certification.”

The bill was therefore passed by a majority of 2:1.