A man who sent messages to his ex-partner via Facebook expressing his determination to pursue contact with their son has succeeded in an appeal against conviction of sending a threatening communication contrary to s 127 of the Communications Act 2003.

Roy Brown, the appellant, had separated from the complainer, EC, in April 2012. They had a son, W, born in October 2011. He had had some limited contact but EC did not wish to allow this. He had also spent some time in prison, and had been subject to special conditions of bail preventing him from communicating with or contacting EC. These conditions no longer applied at the time of the offence, and he had instructed solicitors to seek contact. EC had instructed solicitors to reply refusing the request.

The charge concerned two messages to EC's Facebook account, sent a few minutes apart in November 2015. The first asked if EC was trying to spite W against the appellant, denied that W did not remember him, begged her to allow contact, and concluded: "a will not screw up with [W] a love our wee guy and u know a do". The second added: "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".

EC had become distressed and upset on receiving the messages, before reading them. She took the second message to be a threat and thought the appellant knew where she lived. She reported the messages to the police.

Before the Sheriff Appeal Court it was argued that the sheriff had erred in repelling a submission of no case to answer. The messages had had an innocent purpose and the Crown had not shown objectively that they were threatening or menacing. The Crown accepted that the first message could be characterised as unpleasant but otherwise unobjectionable, but argued that the second should properly be construed as threatening. There was an implied threat and the appellant would go to any lengths to have contact with W. EC's reaction was relevant.

Delivering the opinion of the court, Sheriff Principal Mhairi Stephen QC, who sat with Sheriff Principal Craig Turnbull and Sheriff Michael O'Grady QC, said the offence comprised the sending of a message of a certain character. The content had to be of a "menacing character", and this had to be considered in context. A menacing message was one which conveyed a threat. The reaction of the recipient or complainer was not the determining factor.

She continued: "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."

While there was a background of a dispute over contact, with distress to EC, "in assessing the nature of messages which pass between parties for the purpose of criminal liability the court should not only have regard to that background but must undertake an objective assessment of the words deployed".

She continued: "In our opinion, had the sheriff made that objective assessment she would have recognised that the messages did not contravene s 127 of the 2003 Act for the very simple reason that the messages lack menace... 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... At its highest this message contains both factual information and a vague warning. It is, however, an entirely equivocal statement."

The court therefore allowed the appeal. It concluded with a reminder of the proper form of a stated case, especially where there had been a submission of no case to answer.

Click here to view the opinion of the court.