Sheriff Appeal Court refuses appeal by Glasgow woman convicted of sending offensive emails to SNP MP
A woman who was convicted of sending offensive messages to her MP has lost an appeal by stated case against the trial sheriff’s decision to repel a no case to answer submission under section 160 of the Criminal Procedure (Scotland) Act 1995.
Vaiva Sutinyte was convicted of an offence under section 127 of the Communications Act 2003 after a sheriff determined that emails that she sent to the SNP’s Patrick Grady, the MP for Glasgow North, in February 2021 were grossly offensive.
The appeal was heard by Sheriffs Principal Duncan Murray, Derek Pyle, and Nigel Ross. Findlater, advocate, appeared for the appellant and Goddard QC for the Crown.
On 1 February 2021, the appellant emailed Mr Grady multiple times from 6:04 in the morning to 22:36 at night. In the emails, she expressed a desire to take Mr Grady to court in Strasbourg for alleged human rights violations and called him a “fuckin bitch”, as well as saying “I hope you choke from your morning coffee”. Messages of a similar character had also been sent on the night of 31 January.
During the trial diet, the sheriff heard evidence from Malcolm McConnell, a member of Mr Grady’s parliamentary team, and a police constable about eight emails sent by the appellant to Mr Grady over a short period of time. Mr McConnell’s evidence was that Mr Grady’s team was concerned that the appellant was a fixated individual and referred the messages to a parliamentary team that investigated abusive correspondence.
Counsel for the appellant submitted that the messages, while offensive, did not clear the high bar of being “grossly” offensive within the meaning of the 2003 Act and were sent in the context of the appellant’s increasing frustration with her MP. He accepted that the word “bitch” had been used in a pejorative sense but submitted that the word had perhaps in some circumstances been reclaimed, thus losing some of its offensive quality.
In response, the Crown submitted that the sheriff’s analysis had been correct, and that he had properly considered the messages in the context they were sent. The context of the series of messages, sent to an elected member of parliament, rendered their content grossly offensive. The sheriff was therefore correct to repel the section 160 submission.
Beyond merely offensive
Delivering the opinion of the court, Sheriff Principal Murray cited with approval the judgment of Lord Bingham in DPP v Collins (2006) and noted: “In applying [Lord Bingham’s] test, we find no error in the sheriff’s conclusion that the section 160 submission was properly refused. He was entitled to reach the view that, objectively assessed and taking into account the context in which they were sent, these messages did contravene section 127(1)(a) of the 2003 Act.”
He continued: “We further consider that the sheriff was correct in his analysis that Mr McConnell’s description of the messages as ‘abusive’ rather than grossly offensive or of an indecent, obscene or menacing character; was not determinative, nor was the absence of any evidence from the MP himself. The sheriff accepted that the messages sent at 6:04 and 22:36 were grossly offensive, having discounted that the terms of the earlier messages crossed that threshold.”
Sheriff Principal Murray concluded: “On objective assessment, the messages included language which was intrinsically offensive, which conveyed personal insult, and which wished physical harm to the recipient, who was acting as a public servant. We agree that, in context, the messages went beyond merely offensive and were grossly offensive. To quote Lord Bingham, the appellant ‘used language which is beyond the pale of what is tolerable in our society’.”
The appeal was therefore refused.