Sheriff Appeal Court quashes conviction of man charged under domestic abuse legislation for watching daughter leave school

About this case:

• Citation:
  [2022] SAC (Crim) 9
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff Sheehan

Appellant Scotland Walker argued that the trial sheriff had erred in repelling a no case to answer submission made on his behalf, as his behaviour was not directed at the complainer but was instead there to see his daughter coming out of school.

The appeal was heard by Sheriff Principal Derek Pyle and Appeal Sheriffs Wendy Sheehan and Derek Hamilton. Paterson, solicitor advocate, appeared for the appellant and S Borthwick KC for the Crown.

Step too far

The appellant was convicted of contravening section 1 of the 2018 Act by loitering near Dunoon Primary School on multiple occasions between 20 August and 10 September 2021. Since his separation from his former partner, he had exercised contact with his then five-year-old daughter at Dunoon Contact Centre, which was a few minutes’ walk from the primary school. On 20 August 2021, he had sat at a public bench near the school and waved to his daughter, who had waved back.

Following this incident, the complainer objected to the appellant’s behaviour by way of a solicitor’s letter. The appellant sought advice from his own solicitor and was advised that there was no legal restriction on him attending Dunoon Primary School to observe his daughter leaving school. On 27 August 2021 the appellant stayed in his vehicle at the locus and was observed by the complainer’s daughter.

At trial, a no case to answer submission was made and repelled. The appellant proceeded to give evidence and was thereafter convicted. It was submitted on appeal that the sheriff had failed to properly consider the constituent elements of the offence, and that in the circumstances of the case it was a step too far to characterise his behaviour as abusive.

Counsel went on to submit that, as the sheriff had found that the accused was at the locus to see his daughter coming out of school, it was difficult to see how in such circumstances he could have concluded that his behaviour was directed at the complainer. Whilst in some circumstances behaviour directed at a child of the complainer may fall within section 2(2)(b) of the Act, that provision was not applicable in circumstances where the appellant’s daughter waved at him on the first occasion and where there was no evidence that she was even aware of his presence on the other dates libelled.

Some way short

Appeal Sheriff Sheehan, delivering the opinion of the court, began by observing: “The sheriff found that the appellant attended the locus to see his daughter come out of school. He did so on three occasions. Whilst this was a course of behaviour in terms of section 1(1)(a), it was not abusive. To be so defined, the behaviour concerned required to be either violent, threatening or intimidating in terms of section 2(2)(a) or to have as one of its purposes, frightening the complainer in terms of section 2(2)(b)(ii) and (3). There is no finding-in-fact to support such an inference.”

She continued: “After the first incident, he was made aware (by correspondence sent by his solicitor) that the complainer objected to him going to the school. That objection falls some way short of her being frightened or indeed of her being psychologically harmed in terms of section 1(2)(b) simply by his presence at the locus. It is difficult to see how the sheriff could have concluded that the appellant was reckless as to whether his behaviour was likely to cause the complainer psychological harm.”

Addressing the sheriff’s handling of the no case to answer submission, she said: “[The sheriff] failed to address section 2(2) of the Act, which required him to find that in terms of section 2(2)(b) the appellant’s behaviour was directed at the complainer. The sheriff’s findings-in-fact do not support an inference that the appellant’s behaviour was directed towards the complainer. His consideration of the no case to answer submission focussed purely on the second part of section 2(2)(b)(ii), namely whether the behaviour concerned would be considered by a reasonable person to be likely to have one or more of the relevant effects set out in section 2(3). He failed to address the issue of the need for the appellant’s behaviour to be directed at the complainer.”

She concluded: “In the facts and circumstances of this case, the sheriff erred in repelling the submission of no case to answer. We answer the first question in the affirmative. In consequence, we do not require to answer the other four questions. The appellant’s conviction and sentence are quashed.”