Procurator Fiscal, Ayr v. James Murphy [2015] HCJAC 78

Stated case:- On 22 August 2013 the respondent was made the subject of a non‑harassment order. Subsequently, the respondent appeared on a summary complaint containing a charge that he breached the order by approaching the complainer on 18 November 2014 contrary to section 234A(4) of the Criminal Procedure (Scotland) Act 1995. Following trial the sheriff acquitted the respondent of the charge on the basis that whilst there had been an encounter between the respondent and the complainer, it was a chance one of short duration and the respondent’s intention had not been to approach the complainer at all but to say hello to the complainer’s child ‘D’, who was present at the material time. The sheriff was of the view that the respondent lacked the necessary mens rea to approach the complainer and the charge was found to be ‘not proven’. Here the Crown appealed by stated case against that decision. On behalf of the Crown it was conceded that it was a chance encounter and the respondent’s motivation was to speak to the child, however, it was submitted that the case raised an important point of law and that the sheriff had confused motivation with mens rea. It was submitted that what was required was for an intention to deliberately proceed in the direction of the other individual and no further mental element was required. It was further submitted by the Crown that the question as to whether the steps taken towards the other individual amounted to an approach would be a question of facts and circumstances in any given case. On behalf of the respondent it was agreed that mens rea was required and there had been no breach as there had to be a deliberate approach towards the person who was protected by the order. Here the court allowed the appeal and remitted the case to the sheriff with a direction to convict. The court considered that the respondent deliberately took that course of action he did and that the intention or motivation behind taking that deliberate action of approaching the complainer was irrelevant albeit it may be relevant to sentence. The court considered where, for example, an individual is prohibited from approaching person ‘A’ he cannot get round that by approaching person ‘B’ whom he knows is standing beside person ‘A’ as that would defeat the purpose of non-harassment orders.