Sheriff Appeal Court quashes sheriff’s order for recovery of domestic abuse complainer’s phone records

Counsel for the Procurator Fiscal in Falkirk argued that the sheriff’s order was lacking in specification, not supported by adequate reasoning, and unnecessarily intrusive. The respondent, BM, argued that he no longer possessed the requested records on any of his own devices and the order was necessary to allow him to conduct his defence.

The appeal was heard by Sheriffs Principal Marysia Lewis, Craig Turnbull, and Nigel Ross. The Lord Advocate, Bain KC, appeared for the appellant and Shand, advocate, for the respondent.

Beyond what was required

The case against the respondent was that he engaged in a course of behaviour that was abusive of the complainer, his partner or ex-partner, including repeatedly contacting the complainer by telephone. After appearing on summary complaint before Falkirk Sheriff Court and being admitted to bail, the summary sheriff granted an order for the recovery of phone records for the stated reason of demonstrating what contact, if any, was made by the complainer to the accused.

It was asserted by the respondent that the complainer regularly and uninvited both telephoned and messaged the respondent during the relevant period. The appellant opposed the application on the basis that they were not the haver of the records referred to. They also referred to defects in the procedure, including no grant of a warrant of service and a lack of opportunity for the complainer to be heard on the application.

The appellant further submitted that the order granted was a disproportionate interference with the complainer’s Article 8 ECHR rights and went well beyond what was required for proper preparation of the respondent’s defence. The summary sheriff failed to consider whether a less intrusive measure could have been used and failed to strike a fair balance between those factors.

For the respondent it was submitted that, given the lack of opposition to the application at first instance, there was no proper basis on which the court could interfere with the decision reached. Alternatively, any interference with the decision at first instance should be limited to restricting the time period covered by the summary sheriff’s order to the period of the libel.

Interests of justice

Sheriff Turnbull, delivering the opinion of the court, noted: “In appearing for the appellant, the Lord Advocate candidly accepted that the Crown neither intimated the application to the complainer nor discussed it with her. They did not seek the complainer’s views. Contrary to the advice and instructions given to procurator fiscal deputes, the Crown had not done that which they should have done in this case. The apology was, in our view, properly made and we propose to say no more on this aspect of the hearing of the application before the summary sheriff.”

However, he continued: “The appellant made a number of submissions in relation to application. In our view, those submissions are well founded. The mobile telephone numbers in respect of which records were sought ought to have been specified. The dates between which the records were sought ought to have been specified. To that extent, the application was lacking in essential specification.”

On the value of the order to the respondent’s defence, the Sheriff Principal said: “In the circumstances of offence with which the respondent has been charged, it was incumbent upon the respondent to specify why the production of the complainer’s telephone records would be of material assistance to him. The respondent failed to do so. Whilst the telephone records would likely show what, if any, contact was made by complainer to the respondent, that would not assist the respondent in establishing that he did not repeatedly contact the complainer.”

He went on to say: “We are not satisfied that an order for the production of the telephone records would be likely to be of material assistance to the proper preparation or presentation of the respondent’s defence. It was not in the interests of justice to grant the order sought.”

Sheriff Principal Turnbull concluded: “It is unnecessary for us to consider whether the order granted was also unnecessarily intrusive and, for that reason, a disproportionate interference with the complainer’s Article 8 rights. It was properly conceded by the respondent that any order for recovery ought to have been restricted to the period of the libel. In our view, in any summary proceedings in the sheriff court where an order for the recovery of documents is sought, and in which such an order may amount to an interference with a third party’s Article 8 rights, consideration should be given to the appointment of a commissioner to take excerpts from the documents.”

The decision of the summary sheriff was therefore quashed.