Crown wins appeal against sheriff’s ‘not proven’ ruling over non-harassment order breach

Scottish Legal News

The Crown has successfully challenged a sheriff’s decision to acquit a man of breaching a non-harassment order.

James Murphy was accused of breaching the order by approaching the complainer, but the sheriff at Ayr found that while there was an “encounter” between the respondent and the woman, it was “a chance one of short duration” and the respondent’s “intention” had not been to approach the complainer but to approach her child.

However, the Criminal Appeal Court allowed the appeal after ruling that the sheriff “confused the question of motivation with the question of mens rea”.

Lady Paton, Lord Menzies and Lord Matthews heard that the respondent was charged with breaching the order by approaching the complainer on 18 November 2014.

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”.

For the Crown, it was argued that the sheriff had “confused mens rea with motivation”.

It was not disputed that there was a chance encounter, nor was it disputed that the respondent’s motivation was to speak to the child, but the advocate depute submitted that the only mens rea which was required was the intention deliberately to proceed in the direction of the other individual and “no further mental element was required”.

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”, it was submitted.

In reply, it was argued on behalf of the respondent that the purpose behind a non-harrasment order was to protect the person named in it and in this case the sheriff had found that the respondent had “not intended to approach that person at all”.

It was submitted that for a breach to be established there must 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 it would be “unjust” for the court to not allow such a defence.

However, the judges allowed the appeal after observing that while his intention was to speak to the child the respondent had “deliberately” moved towards the complainer and the intention or motivation behind the approach was “irrelevant” in the circumstances.

Delivering the opinion of the court, Lord Matthews said: “This is doubtless an approach towards but on no view could it be said not also to be an approach towards the complainer.

“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.

“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.”

He added: “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 appeal court remitted the case to sheriff with a direction to convict the respondent.

© Scottish Legal News Ltd 2020