Ex-councillor loses appeal against conviction for sending anti-Muslim text messages to lover

Sheriff Appeal Court
Sheriff Appeal Court
A former councillor found guilty of behaving in a “threatening and abusive manner which was likely to cause a reasonable person to suffer fear or alarm” after sending racist text messages to his Muslim lover in the wake of the Paris terror attacks has lost an appeal against his conviction. 
Craig Melville, who was a councillor in Dundee, was fined £1,000 for sending the “derogatory” messages to Nadia El-Nakla following the attack on the Bataclan theatre in November 2015.
The appellant challenged the admissibility of a transcript of the texts, claiming that the messages were “improperly obtained” by the complainer’s husband, but the Sheriff Appeal Court upheld the sheriff’s decision to excuse any irregularity.
‘Derogatory messages’
Sheriff Principal Marysia Lewis, sitting with Sheriff Principal Craig Turnbull and Appeal Sheriff Norman McFadyen, heard that the appellant was charged with a breach of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 for sending a number of text messages to the complainer that contained “threatening, abusive and derogatory remarks” regarding Muslims, an offence aggravated by “racial prejudice”, but he pled not guilty and the matter proceeded to trial.
Dundee Sheriff Court was told that the complainer and the appellant, who were both married, were involved in an “intimate relationship” during 2014 and 2015 while both were working for representatives of the Scottish National Party in Dundee.
Over the weekend of 14 November 2015 the pair exchanged texts about the attack in Paris by Islamic terrorists and in the early hours of Sunday 15 November the appellant sent a series of messages which upset the complainer, including one in which he described Islam as “a horrible disease”.
Another text read “It’s not personal I just f*cking hate your religion” and that he would do all he could to “defeat your filth”, while a further message said “If I had a gun, I’d shoot a Muslim but I’m not brave enough”.
The texts were later discovered by the complainer’s husband, who took her mobile phone without her consent and searched the device using data recovery software after becoming suspicious she was having an affair with the appellant.
‘Evidence improperly obtained’
The appellant objected to the admissibility of a transcript of the messages obtained from the iPhone which the Crown sought to lead evidence regarding the source and content of the texts.
However, the sheriff found that although the messages were obtained without consent, he was prepared to “excuse the irregularity” based on the nature of the irregularity, the “serious nature” of the offences, the fact that the accused was a public official at the time the messages were sent and the fact that it could not be said to create unfairness to the accused to admit them. 
At the close of the Crown’s case the defence made a submission of “no case to answer” on the basis that there was “insufficient evidence” to identify the appellant as the sender of the messages, but the sheriff also repelled that submission. 
Following his conviction, Melville appealed on the basis that the sheriff ought not to have excused the irregularity because he had failed to properly determine the “context” in which the messages were recovered by the complainer’s husband, filtered by him for passing to the police, and transcribed by the police.
However, the appeal sheriffs ruled that the appellant’s argument failed to have regard to the nature of the irregularity and the circumstances in which it was committed, failed to take account of the “whole context” in which the messages came to be written, recovered and transcribed and failed to take into account the content of the transcription, the oral evidence of the complainer, the “seriousness” of the offence and that the investigative authorities had no role in the recovery of the material and were plainly acting “in good faith”. 
‘Sheriff entitled to excuse irregularity’
Delivering the opinion of the court, Sheriff Principal Lewis said: “The complainer’s husband suspected that his wife was having an affair with the appellant. The iPhone which was examined by the complainer’s husband did not belong to the appellant but to the complainer. 
“His purpose in using data recovery software was not to uncover evidence of criminality but to secure evidence of adultery on the part of his wife. Having uncovered evidence of adultery through the downloaded messages, he shared the data with his wife. 
“It was his wife who made the complaint to the police. She voluntarily handed over her iPhone to the police for examination. He voluntarily provided the police with the transcript of some of the messages passing between the appellant and the complainer.
“The offending messages are racist and anti-Muslim. The messages were sent by a public official to a Muslim who as the sheriff notes ‘was alarmed and shocked by the content’. 
“We are not persuaded that the sheriff erred by failing to consider context. He had regard to the factors which we have mentioned, including fairness to the appellant. He was well entitled to hold that any irregularity should be excused.” 
At trial the Crown had conceded that the evidence was irregularly obtained, but the appeal sheriff questioned what had happened was properly viewed as an irregular search or indeed a search at all. 
Sheriff Principal Lewis added: “Examination of the complainer’s telephone was not conducted by the police or anyone investigating alleged or suspected criminal conduct, but by the complainer’s husband, whose purpose was to find evidence, if it existed, of adultery. 
“It was the complainer’s privacy which was affected by her husband’s action and, of course, she proceeded to report the matter to the police, plainly waiving any right she may have had to take issue with the use of the material.
“In that situation it seems to us difficult to see this as a case which involves the irregular securing of evidence, far less one which triggers the need to consider whether an irregularity should be excused.”
The court also rejected the appellant’s claim there was no corroboration that he had sent the messages.

© Scottish Legal News Ltd 2020

Other judgments by Sheriff Principal Marysia Lewis