HMA V PETER DONNELLY 2018
Peter Donnelly who was given a non-harassment order after his sentence was deferred for good behaviour has had his appeal against the order dismissed. He was found guilty of a statutory breach of the peace and carrying an offensive weapon, three months prior to the order being imposed and sentence was deferred for reports and good behaviour. The appellant challenged the competency of the order being imposed.
The Sheriff Appeal Court held that there was “nothing inherently problematic” with making the order at the deferred sentence. The appellant’s advocate Mr Macintosh referred to the case of Duncan v Spiers 2008 JC 355, in which the High Court held that the making of an antisocial behaviour order at the deferred sentence for good behaviour was incompetent. He stated this case was analogous and that ordering the order be imposed at this time defeated the purpose of deferring for good behaviour.
The crown agreed that the wording of the legislation may cause some difficulty but this did not mean that it was incompetent. Refusing the appeal, the appeal sheriffs held that it is competent for a court to make a non-harassment order at the same time as deferring sentence.
Delivering the opinion of the court Sheriff McFadyen said; “If the legislature intended to limit the power to make an NHO to the time of sentence or final disposal of the case it could readily have made that clear, most obviously by using the same or similar language to that adopted for ASBOs.” The Appeal Court stated as this was not the case the appeal was refused.