Father who posted ‘threatening’ messages on ex-partner’s Facebook page wins appeal against conviction

The Sheriff Appeal Court ruled that the sheriff erred in repelling a defence submission of “no case to answer” after the appellant argued that there was “nothing menacing” in the content of the posts on the social networking site.

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Craig Turnbull and Sheriff Michael O’Grady QC heard that the appellant Roy Brown and the complainer “EC” had been in a relationship and had a child together, “W”, who was born in October 2011.

After their separation in April 2012 the appellant had some limited supervised contact with the boy, but relations between the former couple turned sour and the complainer no longer allowed contact between the father and his son.

The appellant had been released from prison and previously subject to special bail conditions preventing him from communicating with or contacting the complainer.

Following his release the bails conditions no longer applied and he engaged lawyers to seek contact with his child, but the complainer was not minded to allow contact and she engaged her own lawyers.

The appellant then posted two messages on the complainer’s Facebook page at 2.15pm and 2.26pm on 23 November 2015 in the following terms:

“2.15 pm – why are you doing this to spite ‘W’ against me or something got ur shitty lawyers letter lol must admit quite funny really ‘W’ doesn’t remember me get a grip we both know that aint true please ‘E’ am begging you a will not screw up with ‘W’ a love our wee guy and u know a do”; and

“2.26 pm – and also a get tht u hate me and probably wish a was dead but believe me when a tell you a will see ‘W’ if it kills me a will remember there is no bail or anything now”.

The court was told that the complainer became “distressed and upset” on seeing that the appellant had sent the messages – before she had read either.

She took the second message to be a “threat” and believed the appellant knew her address and might attend “uninvited”.

The appellant’s no case to answer submission was rejected and he was convicted at Ayr Sheriff Court in May 2016 of posting messages of a “menacing character” that were of a “threatening nature”, contrary to section 127(1)(a) of the Communications Act 2003.

However, it was argued on behalf of the appellant that the sheriff had erred in repelling the defence submission.

In respect of the first message, there was “nothing menacing or threatening” at all in that communication and the second message “did not contain any threat”.

It was submitted that in order to prove the charge the Crown required to show objectively that the messages sent was either “grossly offensive or of an indecent obscene or menacing character”, and the sheriff “failed to apply an objective test”.

Allowing the appeal, the appeal sheriffs observed that the messages had to be considered objectively in the “context” in which they were sent and that the reaction of the recipient or complainer was “not the determining factor”.

Delivering the opinion of the court, Sheriff Principal Stephen said: “The offence of which the appellant was convicted cannot be proved unless the content of the message was of a ‘menacing character’… A menacing message is one which conveys a threat.

“On an objective analysis the first message is in the nature of a plea to the complainer not to turn his son against him. It was conceded that it is unobjectionable. The second message is a continuation of the first and returns to the issue of the child and contact with the child. That, in our view, is the context in which the messages should be assessed.

“In our opinion, had the sheriff made that objective assessment she would have recognised that the messages did not contravene section 127 of the 2003 Act for the very simple reason that the messages lack menace.

“We agree that the first message is not objectionable at all. We are not persuaded that the second message contains anything more than an expression by the appellant of his determination to pursue his quest for contact with his son. There is no explicit threat or menace.”

She added: “Of course, the findings of any sheriff who has heard evidence deserve respect. Nevertheless, it appears to us, that the sheriff has erred in focusing on the complainer’s reaction.

“Clearly, the messages are directed solely to the complainer, however, on a plain reading and analysis of the messages we decern no threatening or menacing words. Accordingly, it was not open to the sheriff to repel the no case to answer submission.”