Scots lawyer convicted over domestic incident loses appeal against sheriff’s refusal to order absolute discharge

The Sheriff Appeal Court rejected the appellant’s claim that there had been a “miscarriage of justice” after ruling that the sheriff was entitled to find that this was not a “trivial” incident and that the circumstances of the offence were “concerning and serious”.

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Craig Turnbull and Sheriff Kenneth Maciver QC heard that the appellant “AS” was convicted after trial at Kilmarnock Sheriff Court of a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 in September 2016 and was acquitted of the second charge on the complaint, that being a charge of assaulting his wife.

The court heard that the parties’ marriage had broken down and the appellant had tried to obtain and elicit information from his wife’s phone and laptop.

The court was told that the circumstances of the offence caused his wife and children a great deal of upset and indeed it was the appellant’s son who contacted the police by dialling 999 due to his father’s behaviour, which was described as “angry, abusive and aggressive behaviour of a controlling and jealous nature”.

The sheriff heard a submission on behalf of the appellant that the court should discharge him absolutely without proceeding to conviction, but the sheriff declined to do so.

The sheriff deferred sentence for the appellant to be of good behaviour and continued bail, including the special condition of bail preventing the appellant from contacting the complainer.

However, the appellant challenged the sheriff’s decision to proceed to convict and defer sentence.

Provision is made for absolute discharge in summary proceedings by section 246(3) of the Criminal Procedure (Scotland) Act 1995, which provides that before the sheriff may order an absolute discharge the court must be of the opinion that it is inexpedient to inflict punishment, having regard to the circumstances of the case which will include the nature of the offence and the offender’s character.

The appeal was presented with specific emphasis on the appellant’s lack of previous record together with his “exemplary and meritorious military service” as a wing commander in the RAF and to his professions as a solicitor.

Written submissions referred to the appellant as a member of the Law Society of Scotland and a member of the council of the Society of Writers to the Signet and that he was likely to face disciplinary action by the RAF and by the Law Society.

But the appeal sheriffs noted that the sheriff had taken account of the appellant’s “previous good character” and the “possible repercussions” a conviction might have on his career.

The sheriff was well aware of the background and context against which the offence took place, but he also had regard to the appellant’s attitude to the offence and his “complete lack of remorse or contrition”.

Delivering the opinion of the court, Sheriff Principal Stephen said: “In this case the sheriff has given a full explanation of the facts concluding that this was not a trivial incident. The type of offending in the domestic context is indeed serious and far from unusual in the Sheriff Court.

“Special courts have been set up to deal with this type of behaviour, that is the domestic section 38 or other domestic offending. Sheriffs daily deal with this type of offence and indeed section 38 arguably was enacted precisely to deal with this type of domestic breach of the peace.

“We take the view that the sheriff was entitled to find that this was not trivial and that the circumstances of the offence were concerning and serious. As we have observed, the behaviour is described as angry, aggressive, threatening and abusive behaviour (jealous controlling behaviour is another way of putting it) involving the appellant’s determination to obtain and elicit information from his wife’s phone and laptop.

“The sheriff’s assessment of the gravity of the offences is underlined by the complainer’s fear that the appellant would continue to contact her once these proceedings were concluded.

“The sheriff’s decision to monitor the appellant’s behaviour by way of a deferral of sentence continuing the special conditions of bail is a disposal which we consider to be entirely understandable and appropriate in the circumstances of the case.”

The court fully accepted that the consequences for the appellant may well be serious, but it was a matter for the RAF and the Law Society of Scotland to decide what disciplinary action should be taken.

The Sheriff Principal added: “For these reasons we are not satisfied that there has been a miscarriage of justice and we propose to refuse the appeal. This necessarily means that the case will go back without further order to the sheriff court to allow the sheriff to deal with further matters relating to sentence.”