Appeal court overturns harassment acquittal
A person cannot avoid conviction for breaching a non-harassment order by approaching the complainer, by claiming their motive was to approach another person the complainer was with, the Criminal Appeal Court has ruled.
Lady Paton. Lord Menzies and Lord Matthews held that a sheriff had erred in finding the necessary mens rea (guilty intent) lacking and acquitting James Murphy of the charge at Ayr Sheriff Court.
Evidence had been led that the accused was subject to a non-harassment order in relation to the complainer but not in relation to his child, her son (D). A supervision order was in place in relation to D, restricting contact but permitting the accused to speak to D if there was a chance encounter.
On the day in question, shortly after the complainer collected D from school, the accused caught up with them and attempted to speak to D. He followed them for a short distance when the complainer tried to walk away, but disappeared after she went into a shop.
The sheriff relied on the complainer's evidence to the effect that the respondent was not “approaching” her but rather the child, in holding that the Crown had not proved criminal intent. However Lord Matthews, delivering the opinion of the court, said that the sheriff had confused the question of motivation with the question of mens rea.
"This is doubtless an approach towards D, but on no view could it be said not also to be an approach towards the complainer", he stated. "The respondent deliberately took that course of action."
The judge said that whether an accused person approached another person as a matter of fact should be determined by the application of common sense to the circumstances. He added: "It is one thing if an individual approaches another without knowing that the person whom he is forbidden to approach is also there. It is quite another when he knows full well that he is also approaching such a person. In our opinion, if an individual is forbidden to approach person A he cannot get round that by approaching person B, whom he knows is standing next to or near to A. Such a situation would make a mockery of non‑harassment orders and defeat their purpose entirely."
In relation to mens rea, the Crown had to prove it, "but only to the extent that it must be shown that the accused deliberately did the acts complained of, knowing, in the case of an approach, that he was in fact 'approaching' or 'nearing' the complainer".
The case was returned to the sheriff with a direction to convict.