Sheriff deserts first abortion buffer zone prosecution after finding Crown failed to specify all elements of offence

About this case:

• Citation:
  [2026] SC GLA 59
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff S Reid

Rose Docherty, aged 75, was charged under section 4 of the Abortion Services (Safe Access Zones) (Scotland) Act 2024 for allegedly displaying placards within a safe zone for the purpose of influencing the decision of persons to access, provide, and facilitate the provision of abortion services at the protected premises. Objection was taken by the accused to the relevancy of the charges in addition to a compatibility challenge per article 10 ECHR.

The case was considered by Sheriff Stuart Reid, with McGowan, advocate, appearing for the accused. A motion to amend the charges was made by the Procurator Fiscal in Glasgow.

Failed to libel an offence

Under section 4 of the 2024 Act, a person in a safe access zone for protected premises commits an offence if they perform an act with the intention of influencing another person’s decision, preventing or impeding them from accessing or providing services, or causing harassment, alarm, or distress in connection with their decision. For an offence to be committed, the other person must be in the safe access zone for the purpose of accessing, providing, or facilitating abortion services, unless the act has a continuing effect.

The charges against the accused libelled that she, between 24 September 2024 and 19 February 2025 and on 24 September 2025, displayed placards within a safe zone with the intention of influencing persons’ decisions. At a pleading diet on 19 December 2025, the case was continued without plea for the Crown to disclose the “key evidence” to the defence. Further continuances were granted on defence motions, with minutes giving notice of the defence’s plea of relevancy and the compatibility issue lodged on 24 March 2026.

At a diet of debate on 20 April 2026, it was submitted that the charges against the accused failed to specify that there was any other person within the safe access zone at the time when her impugned acts were done, and therefore they were not relevant in law. By failing to relevantly libel an offence known to Scots law, they constituted an unlawful interference with her Convention rights.

For the Crown it was submitted that the charges correctly specified the dates, the locus, the accused, the means by which the offences were committed, and the statutory provisions which had been contravened. Fair notice of the alleged offences had been given to the accused. While the fiscal depute conceded that he had no evidence that any person was in the safe access zone at the time of the impugned acts, or even if the premises were open at the material times, he later obtained clarification from the relevant premises that operations were being carried on at the time.

Fatally deficient

In his decision, Sheriff Reid said of the necessary elements of the offence: “In the case of a statutory offence, if some further specification is necessary in order to provide fair notice to the accused of the charge against him, the court has the right to insist on that further specification as a ‘condition of relevancy’. Each case will turn on its own facts. But, overall, what is required is adequate specification, sufficient to give fair notice, of the alleged facts and circumstances that are said to constitute the essential ingredients of the statutory offence.”

He added: “To provide fair notice to the accused of the allegation against her, the charge must specify the alleged facts and circumstances in the present case that are said to constitute these essential ingredients of the statutory offence. In the event, the charges in the complaint fail to specify ingredients (4) and (5). They fail to specify that both the accused and ‘another person’ were present within the safe access zone, at the same time, when the impugned ‘act’ was allegedly done; and that the ‘other person’ was present, at that time, for one of the specified purposes (namely, for the purpose of accessing, providing, or facilitating the provision of, abortion services at the protected premises).”

Noting that there was no suggestion that the impugned acts in the charges had any continuing effect, Sheriff Reid said: “It is incontrovertible that, absent a libelled act having continuing effect, both the accused and the other person must be in the safe access zone at the same time when the impugned act is done. Otherwise, no offence is committed. In the present case, neither charge alleges that the accused did anything with a continuing effect in terms of section 4(2) of the 2024 Act. As a result, both charges, as libelled, are fatally irrelevant and deficient because an essential ingredient is omitted.”

He clarified: “I do not suggest that the protected person must be named or even give evidence. Understandably, that may not be desirable. But their existence, presence, and specific purpose within the safe access zone, simultaneously with the impugned act, must be averred and proved. Put another way, this is not an offence which can be committed against a hypothetical person, such as the offence of threatening and abusive conduct in terms of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, where criminality attaches to behaviour that is perceived to be threatening by any hypothetical ‘reasonable person’.”

Refusing the Crown’s motion for amendment, the sheriff concluded: “The prosecutor cannot find refuge in paragraph 13 of Schedule 3 to the 1995 Act, by merely parroting the terms of the statutory provision. What is required is specification of the modus of this particular offence, by narrating the alleged facts and circumstances pertaining to this particular case that establish the essential ingredients of the statutory offence.”

Having further sustained the accused’s compatibility minute, Sheriff Reid dismissed the two charges and deserted the proceedings pro loco et tempore, having found that a future trial would not inevitably be unfair if proceedings were to re-commence.