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Solicitor fails to secure discharge for domestic disturbance charge

14 March 2017

A solicitor and wing commander in the RAF has failed on appeal to secure an absolute discharge for a statutory breach of the peace offence committed in a domestic disturbance.

The Sheriff Appeal Court refused an appeal by the man, AS, who was convicted after trial at Kilmarnock Sheriff Court of contravention of s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 by behaving aggressively towards his wife and shouting and swearing at her. He was acquitted on a separate charge of assaulting her. The sheriff declined to discharge absolutely without proceeding to conviction, and deferred sentence for good behaviour, continuing a bail condition preventing AS from contacting the complainer.

AS put before the Appeal Court his lack of previous record together with his exemplary and meritorious military service. He was a member of the council of the WS Society. He was likely to face disciplinary action by the RAF and also the Law Society of Scotland.

Refusing the appeal, the court categorised AS's behaviour as "angry, abusive and aggressive behaviour of a controlling and jealous nature", attempting to gain information from his wife's phone and laptop, which had caused great upset to his wife and children, leading to his eldest son dialling 999.

"The sheriff’s assessment of the gravity of the offences is underlined by the complainer’s fear that the appellant would continue to contact her once these proceedings were concluded", Sheriff Principal Mhairi Stephen said, delivering the opinion of the court in which she sat with Sheriff Principal Craig Turnbull and Sheriff Kenneth Maciver. "The sheriff’s decision to monitor the appellant’s behaviour by way of a deferral of sentence continuing the special conditions of bail is a disposal which we consider to be entirely understandable and appropriate in the circumstances of the case."

There required to be exceptional circumstances before the court ordered absolute discharge. "We take the view that the sheriff was entitled to find that this was not trivial and that the circumstances of the offence were concerning and serious." While the disciplinary consequences might be serious, that was for the bodies concerned.

"For these reasons we are not satisfied that there has been a miscarriage of justice and we propose to refuse the appeal", the sheriff principal concluded.

Click here to view the opinion of the court.



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