Domestic abuser loses appeal against ‘unwanted’ non-harassment order

The appellant argued that the order was “not necessary” because the complainer was not was vulnerable and she did not want the protection, but the Sheriff Appeal Court refused the appeal after ruling that “necessity trumps the views of the victim”.

Sheriff Principal Mhairi Stephen QC and Appeal Sheriff Peter Braid heard that the appellant Barry Finlay pled guilty in August 2019 to a charge of assaulting the complainer on 12 July 2019 by slapping her on the face, an offence aggravated in terms of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

He was sentenced to a community payback order (CPO) which included a supervision requirement, a drug treatment requirement and a conduct requirement to participate in domestic abuse work, and the sheriff also imposed a six-month non-harassment order.

He was also convicted of a contravention of section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 after being found in the company of the complainer in breach of a bail condition, for which he received a separate CPO with an unpaid work requirement.

‘Non-harassment order’ 

At the sentencing diet on 19 November, the sheriff considered whether or not to make a non-harassment order, as he was obliged to do by section 234AZA of the 1995 Act. 

Having concluded in terms of that provision that it could not be said that an order was not necessary for the protection of the complainer, he made the order.

In reaching that view he had regard to: the appellant’s offending history including two previous convictions with a domestic aggravation involving a different partner; the fact that the appellant had deliberately breached a special condition of bail in relation to the complainer; and that the appellant had described the complainer as “complicit” in the commission of both offences, thus indicating that he sought to minimise his culpability.  

He also took into account that the bail order had been varied in August 2019 to remove the special condition regarding the complainer, but observed that the court had not heard the facts and did not have the benefit of the CJSWR.

The complainer’s views were not before the sheriff at the sentencing diet, but he inferred that she was not supportive of an order being made. 

‘Views of the complainer’

But the appellant argued that the sheriff was “wrong” to make the order.

It was submitted that a non-harassment order had not been necessary, and that the sheriff had therefore “fallen into error” in making one. 

The complainer did not want the protection of a non-harassment order and court should not protect a person who did not wish to be protected, it was argued.

It was made clear to the sheriff that both parties wished the relationship to continue, but the complainer’s views had not been accorded “sufficient weight”. 

There was no suggestion that she was vulnerable and the fact that she simply did not want the protection of an order was a “strong indication” that the order was not necessary for her protection, it was submitted.

‘Necessity’

However, the appeal sheriffs ruled that the only criterion for making an order was one of “necessity”.

Delivering the opinion of the court, Sheriff Braid said: “Section 234AZA was added to the 1995 Act by the Domestic Abuse (Scotland)Act 2018. Its effect, read with section 234A, is that, in respect of proceedings commenced on or after 1 April 2019, where a person is convicted of an offence involving domestic abuse, the sentencing court must now consider of its own volition whether to make a non-harassment order, irrespective of whether or not the Crown moves the court to do so.

“The sentencing sheriff correctly noted that section 234AZA required him to consider the imposition of a non-harassment order. His interpretation of that section was that it was weighted in favour of the granting of such an order unless satisfied that it would be unnecessary to do so.

“In considering that issue, he had regard to the Crown narration, the appellant’s offending history and the terms of the CJSWR. He did not consider that ‘arguable grounds existed’ to demonstrate why a non-harassment order would be unnecessary.

“Subsections (4) and (5) of section 234AZA are unusually, some might say clumsily, worded, but are to the effect that the court must make a non-harassment order unless of a negative conclusion of the question; a negative conclusion of the question being that the court concludes that there is no need for the victim (or where there are any, the children) to be protected by such an order. Marrying those provisions together, the court must make anon-harassment order unless it concludes that there is no need for the victim to be protected by such an order.” 

He continued: “Thus, it will not do for a person convicted of a domestic abuse offence to say that there is no suggestion that a victim of domestic abuse is vulnerable. If such a person wishes the court to proceed upon the basis that the victim is not vulnerable, then there must be material before the court which enables such a conclusion to be drawn.

“We further note that the provision makes no reference whatsoever to a victim’s views being sought. Indeed, where the only criterion for making an order is that of necessity, we can see why that is so.

“The court does not require to carry out some sort of balancing exercise, weighing necessity on the one hand, and the freewill of a victim to be exposed to the risk of harm on the other.  Necessity trumps the views of the victim.”

While the views of the victim may be “relevant” in considering necessity, Sheriff Braid added: “Even if the factors relied on by the sheriff do not all positively point to the necessity for an order – and some of them do, in particular the fact that this offence occurred so soon into the relationship, against a background of a history of domestic offending by the appellant – there is no basis for arguing that they should have led the sheriff to conclude that here was no necessity for such on order… It follows that the appeal must be refused.”