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Non-harassment order competent when sentence deferred: appeal sheriffs

19 January 2018

A non-harassment order can competently be made at the same time as the court is deferring sentence on an offender, the Sheriff Appeal Court has ruled.

Appeal sheriffs Alasdair MacFadyen and Norman McFadyen gave the decision in refusing an appeal by Peter Donnelly against the sheriff's decision to make a two year non-harassment order while deferring sentence for good behaviour and for certain reports, following the appellant's conviction on two statutory charges.

The appellant founded on cases holding that in the absence of express provision, a court was functus after passing sentence; and that making an antisocial behaviour order while also deferring sentence for good behaviour was incompetent as well as undesirable.

Sheriff Norman McFadyen, delivering the opinion of the court, said that comparing the wording of ss 234A (non-harassment orders) and 234AA (ASBOs) of the Criminal Procedure (Scotland) Act 1995, it was clear that as ASBO could not be made until a sheriff came to pass sentence, whereas a non-harassment order could be made "instead of or in addition to dealing with the accused in any other way" – a non-technical phrase which could include deferring sentence.

"Section 234A(1A) does not require that an NHO is made at the time of final disposal of the case and we are driven to the conclusion that the NHO was not incompetent", Sheriff McFadyen said.

He added that the existence of the offence in s 234A(4) did not give rise to a risk of double jeopardy; and that an appellant who wished to have a non-harassment order brought under review could do so while sentence remained deferred.

"In any event, it would have been open to the sheriff to leave the matter as one for special conditions of bail, which would have had much the same effect as an NHO and in such a case, a breach of bail would be a matter for the sheriff to consider when it came to sentence, while no doubt avoiding punishing the appellant twice for the same behaviour on general principles."

Click here to view the opinion of the court.


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