APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Menzies	[2012]HCJAC 76 XJ398/12 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by MARIE REILLY Appellant; against PROCURATOR FISCAL, CUPAR Respondent: _____________

Appellant: A Ogg, solicitor advocate; Drummond Miller (for Ward & Co, Perth)

Respondent: Hughes, AD; Crown Agent

9 May 2012

[1] On 5 March 2012, at a trial diet at Cupar Sheriff Court, the appellant pled guilty to behaving in a threatening or abusive manner contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The locus of the offence was an area immediately outside the courtroom.

[2] The appellant had been, and is, engaged in a civil action pursuing a former partner in relation to property. The former partner had also previously been the victim in a fire raising incident, which had resulted in the appellant being sentenced to 12 months imprisonment. She had set fire to curtains in their former mutual home. At the time of the present offence, the partner had been consulting with his law agent when the appellant approached and called him a rapist, paedophile, thief, liar and sundry similar expressions. The Sheriff took a serious view of the incident given the locus. He imposed a Community Payback Order, as an alternative to custody, involving supervision and a Restriction Of Liberty Order, as unpaid work in the community was not an option. The period selected for the RLO was 162 days, which was reduced from 6 months for the early plea, and the restriction itself was that the appellant remain at home from 7pm to 7am each night.

[3] The appellant has a previous conviction for assault to injury in 2007, which attracted an admonition. She also has a conviction for a breach of the peace, which was dealt with at the same time as the fire raising offence. More recently, as was indicated in the social enquiry report, the appellant has been involved in an assault on her own daughter who is aged only 14. The court was advised that the appellant has pled guilty to that offence, which involved pulling the child out of a car. A psychiatric examination followed and the report indicated a borderline personality disorder, but no psychiatric recommendation.

[4] So far as the appellant's personal situation is concerned, she married in 1996 and has two teenage girls from that union. The marriage was troubled and ended prior to the appellant forming a relationship with the partner already referred to. That relationship too was troubled and ended in 2007. Thereafter the appellant remarried and has a further child aged 3. She separated from her husband in late 2011. The three children are all currently in foster care. The appellant has been a veterinary nurse in past, but is unable to work at present because of her mental and physical health.

[5] It was submitted that the Sheriff erred in his treatment of the seriousness of the offence, which was said to be at the low end of the scale for a statutory breach of the peace. It was indicated that the restriction was causing the appellant inconvenience in that it prevented her and her current partner from going out walking and attending to her horses which are stabled nearby. It also prevented any holiday excursions.

[6] The court is unable to agree with the submission that this offence was at the low end of the scale. The significance of the matter is that it occurred in the precincts of the court itself. The Sheriff was bound to take a serious view of that kind of conduct occurring in the context of a civil litigation. The court appreciates that there will be some inconvenience to the appellant from the Restriction Of Liberty Order, but that was the purpose of imposing it in the first place as an alternative to custody. This appeal is therefore refused.

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