Father convicted of harassing estranged wife wins appeal against order preventing contact with his children

The Criminal Appeal Court quashed the order after ruling that the sheriff “did not have the power” to make a non-harassment order to prevent him approaching or contacting his three children.

Lord Brodie and Lady Clark of Calton heard that the appellant “SJS” was convicted after trial on indictment of engaging in a course of conduct on various occasions between May 2012 and September 2013 which caused his wife “KMG” fear and alarm, contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

He was found to have repeatedly contacted her by email, text message and telephone, posted correspondence to her, repeatedly attended at her home address and repeatedly kicked her door, stood in front of a car she was driving and made threatening and abusive comments and gestures to her:

In his report to the appeal court the sheriff explained that the evidence led at trial disclosed that the appellant and the complainer were married with three children, , A, B and C. but the couple separated in May 2012.

In a series of incidents between 19 May 2012 and 20 September 2013, the appellant caused significant distress to the complainer and her children.

It was clear to the sheriff from the evidence of the children A and B that they also were “frightened” of the appellant and “wanted nothing more to do with him”.

Having obtained a criminal justice social work report, the sheriff imposed a community payback order in respect of the appellant with a requirement that he undertake 240 hours of unpaid work.

In addition, having been satisfied on the balance of probabilities that it was appropriate to protect the complainer and her children from further harassment, the sheriff made a non-harassment order, purportedly in terms of section 234A of the Criminal Procedure (Scotland) Act 1995 for a period of three years.

The terms of the order were to require that the appellant “refrain from approaching or contacting or attempting to approach or contact” his wife or children in any way.

However, the appellant appealed on the ground that the non-harassment order was “inappropriate and excessive” in relation to the children.

The appellant’s written case and argument made reference to the difficulties anticipated by reason of the making of the non-harassment order in respect of family proceedings for contact.

Although the point had not been taken on behalf of the appellant in the ground of appeal when the case called, the court enquired of parties whether it was accepted that the sheriff had power to make a non-harassment order in the terms that he did.

Having heard on behalf of the appellant that there were “doubts about the matter” and having been addressed by the advocate depute, the judges were “satisfied” that the sheriff did not have power to make a non-harassment order in respect of conduct towards the children.

The court accordingly quashed the order and substituted an order restricted to conduct in respect of the complainer KMG.

The judges explained that the section 234A of the Criminal Procedure (Scotland) Act 1995 provides that where a person is convicted of an offence involving misconduct towards a person, the court may make a non-harassment order - in addition to any other disposal made in relation to the offence - if an application is made by the prosecutor in terms of subsection (1) and the court is satisfied that on a balance of probabilities it is appropriate to do so in order to protect “the victim” from harassment.

The questions that therefore arise before the power can be exercised are what is “an offence involving misconduct towards…the victim” and who is “the victim” for the purposes of section 234A.

Delivering the opinion of the court, Lord Brodie said: “We do not question that the sherifff was entitled to come to the view on the basis of the evidence which had been led before the jury that the children had been adversely affected by the misconduct of the appellant, that that misconduct could be regarded as harassment (as defined by section 234(7) of the 1995 Act under reference to section 8 of the Protection from Harassment Act 1997) and that there was a basis for apprehending that the children might be further harassed. That, however, does not determine the question as to whether the sheriff had power to make an order in respect of the children.

“The indictment originally contained a charge of contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 in relation to a specific incident which named the children A and B as persons at whom the appellant shouted. That charge was, however, withdrawn by the prosecutor.

“The only charge in respect of which the appellant was convicted, that being charge 1, makes no mention of any of the children. While we understand that the children gave evidence in support of the allegation contained in the charge, and we proceed upon the basis that the children were witnesses to the conduct described there, we do not see charge 1 as specifying ‘an offence involving misconduct towards’ the children.

“Rather, it is an offence involving misconduct towards KMG. We do not go the distance of saying that a ‘victim’ for the purposes of section 234A must necessarily have been a person specifically referred to by name in the charge in respect of which the accused has been convicted but, in our opinion that a charge can be relevantly framed without any mention of a particular person points away from the offence specified in the charge being ‘an offence involving misconduct towards’ that person.

“It follows, in our opinion, that even if the children in the present case were distressed by the conduct specified in charge 1 and, indeed, might be said to be harassed by it, they cannot be regarded as victims as the term ‘victim’ is used in section 234A(2). It follows from that that while the sheriff did have power to make an order in respect of KMG, he did not have power to make an order in respect of A, B or C.”