Andrew Behan v. Procurator Fiscal, Hamilton [2013] HCJAC 118

Criminal appeal by stated case:- The appellant was convicted after trial on summary complaint of a contravention of section 39 of the Criminal Justice and Licensing (Scotland) Act 2010, which is a stalking offence. At the close of the Crown case a “no case to answer” submission was repelled by the sheriff. The appellant appealed against his conviction by way of stated case on the grounds that there was insufficient evidence from which the sheriff was entitled to infer the accused's intention was to cause the complainer fear or alarm. There was evidence that at least two texts from the appellant were received by the complainer on 24 and 25 December 2012, one on her private mobile and one on her business mobile the number of which she thought was unknown to the appellant. One text stated "Have a happy and good life I truly mean that". Another stated "Have a good life. I hope you be happy. Bye xx". Despite the apparently innocuous nature of those texts, there was evidence from the complainer, and from a police officer, of the complainer's resultant alarm and upset on receiving those texts 14 months after the end of the relationship. The complainer also stated in evidence that at the time of the break up he had assaulted her and her child, and that the separation had been acrimonious with no suggestion of reconciliation. It was submitted on behalf of the appellant that the texts had been benign and were sent during the festive period and that the sheriff should not have taken into account evidence volunteered by the complainer that there had been an assault at the end of the relationship, and that the parting had been acrimonious with no suggestion of a reconciliation. Here the court refused the appeal and held that there was sufficient evidence led by the Crown, taken at its highest, which entitled the sheriff to repel the "no case to answer" submission. The court stated that the sheriff had been entitled to take into account the nature and circumstances of the breakdown, including the evidence of the assault. Further, the sheriff was entitled to have regard to the sending of such texts after a 14 month period without contact during which bail conditions were in place which gave rise to an inference that, either, the appellant intended to cause the complainer fear or alarm, or he ought to have known that such texts would cause fear and alarm.