The appellant was convicted of an offence under the Domestic Abuse (Scotland) Act 2018 for loitering near his daughter’s primary school whilst his ex-partner was there.
It was argued that the sheriff at trial had erred in refusing the no case to answer submission. It was submitted that he was there to see his daughter and his behaviour was not directed towards the complainer. He was charged with loitering outside the school on multiple occasions between the 20th of August and the 10th of September 2021. The appellant had contact with his daughter in a contact centre. In August he sat on a public bench bear to the school and waved to his daughter and she waved back.
The complainer objected to this by way of a solicitor’s letter. The appellant was advised by his solicitor that there was nothing restricting him from attending the school to watch his daughter leave school.
A no case to answer submission was made at trial. The appellant gave evidence and was convicted. It was argued on appeal that the sheriff had not properly considered the elements of the offence and that his behaviour could not have been considered abusive.
In delivering the opinion of the court, Sheriff Sheehan stated: “The sheriff found that the appellant attended the locus to see his daughter come out of school. He did so on three occasions. Whilst this was a course of behaviour in terms of section 1(1)(a), it was not abusive.”
She continued: “The sheriff’s findings-in-fact do not support an inference that the appellant’s behaviour was directed towards the complainer. His consideration of the no case to answer submission focussed purely on the second part of section 2(2)(b)(ii), namely whether the behaviour concerned would be considered by a reasonable person to be likely to have one or more of the relevant effects set out in section 2(3). He failed to address the issue of the need for the appellant’s behaviour to be directed at the complainer.”
The court determined that the sheriff erred in refusing the no case to answer submission.
