This case concerned the respondent who was allegedly engaged in a course of abusive behaviour towards the complainer. After the accused was granted bail, an order was made authorising the retrieval of the complainers phone records.
The case of the accused relied on the fact that the complainer frequently contacted him during the period of time concerned. On the other hand, the crown argued that the records should not be shared as it would breach the complainers Article 8 ECHR right as it was a disproportionate interference. The appellants also argued that the complainer was not given her opportunity to be heard throughout proceedings.
Counsel for the accused argued that there was no proper objection to the direction at the time and it would therefore be improper to alter the decision now.
In the delivery of the appeal judgement, Sheriff Turnbull addressed the court stating that ’the crown had not done that which they should have done in this case.’ Despite this, the Sheriff was of the view that the the appellants case did have merit and that their arguments showed the application to retrieve the phone records was ‘lacking in essential specification.’
Overall, it was concluded that the application should not have been granted in first instance because ‘it was not in the interest of justice to grant the order sought.’ To allow the initial granting of the records to stand would be a disproportionate interference with her Article 8 ECHR right.