Mental health nurse who posted obscene messages on Facebook page has conviction upheld but fine quashed

About this case:

• Citation:
  [2024] SAC (Crim) 7
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Graham Kane, a mental health nurse with no previous convictions, pled guilty to a contravention of section 127(1) of the Communications Act 2003, aggravated by prejudice relating to disability, on 20 December 2023. A fine of £300 had been imposed by the Justice of the Peace and reduced by £100 having regard to the timing of the plea.

The appeal was heard by Sheriffs Principal Aisha Anwar and Gillian Wade, with Appeal Sheriff Philip Mann. A Ogg, solicitor advocate, appeared for the appellant and J Keenan KC, advocate depute, for the Crown.

Misread the room

On 4 September 2023, the appellant posted comments online on a post by the Ardrossan Herald Facebook page about a Christmas shop opening in West Kilbride. The post included two pictures of an offensive nature, a comment that the shop should be burned to the ground and an abusive reference to an individual with Down’s Syndrome. The comments were repeated by the appellant on the same platform a few hours later.

At Kilmarnock Justice of the Peace Court, the solicitor acting for the appellant explained that he had been acting under the influence of alcohol and described him as having “misread the room” and as using “dark humour”. An absolute discharge was refused by the Justice, who proceeded to record the conviction. At the sentencing diet, absolute discharge was again refused and the fine imposed.

A question arose on appeal as to whether, as the Justice had sentenced him, the appellant could challenge his fine in an appeal against sentence or whether he ought to have appealed by way of stated case. It was submitted for the appellant that the procedure in respect of challenging a failure to grant absolute discharge was unclear. If an appeal by stated case was required, it would put the appellant’s solicitors in a difficult position in that they would be forced to challenge the conviction when they only wished to challenge sentence.

For the Crown it was submitted that an appeal seeking to quash a conviction and inviting the court to grant an absolute discharge required to proceed by way of stated case under section 176 of the Criminal Procedure (Scotland) Act 1995, not an appeal against sentence. No submissions were made on the merits of the appeal.

Not compelled to respond

Delivering the opinion of the court, Sheriff Principal Anwar said of the mode of appeal: “Where an absolute discharge is sought and there is no challenge to a finding of guilt after trial or admission of guilt by way of a plea, there is no requirement for the court to consider the sufficiency of the evidence or findings in fact. It is not the finding of, or admission of guilt, but the recording of a conviction which is challenged. That is reflected in the language of section 175(2) which refers to a ‘person convicted, or found to have committed an offence’.”

She continued: “To require a stated case where the refusal to grant an absolute discharge is challenged would, in our view be unduly cumbersome, unnecessary and place an undesirable burden on sheriffs and justices. It is logical that appeals by the defence and the Crown on the question of an absolute discharge, should both proceed by way of a note of appeal.”

Assessing whether the Justice was correct to convict, the Sheriff Principal said: “The appellant’s posts on Facebook were abusive, offensive and threatening. The comments directed at those with Down’s Syndrome in particular could not be described as trivial or minor, nor were the posts an ill judged reaction to a provocation or momentary lapse of judgement; the appellant’s conduct took place in the privacy and comfort of his home after a period of contemplation having read and considered an online article. He was not compelled to respond. He chose to do so.”

She concluded: “We consider that the Justice was correct to proceed to convict the appellant and to refuse to discharge him absolutely. However, the appellant is a first offender who has hitherto been of good character. He has expressed remorse for his conduct and no doubt these proceedings have had a salutary effect upon him. In the circumstances, we will allow the appeal to the extent of quashing the decision of the Justice to impose a fine and will instead admonish the appellant.”