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Appeal to Overturn Harassment Order Refused

PF v Barry Finlay 2020

Mr Finlay has had his appeal to overturn the decision to impose a six month non harassment order when this was not sought by the complainer refused. The Sheriff Appeal Court stated that “necessity trumps the views of the victim” and kept the order in place. The appellant was convicted of assaulting the complainer after pleading guilty a charge under of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

The appellant was also convicted of a breach of bail in relation to the same complainer and received two community payback orders in respect of each charge. The sheriff took in to account all the circumstances at hand when making the non-harassment order. The sheriff did not have the firm views of the complainer, but it was suggested and assumed she would not be supportive of such an order. The sheriff considered the order necessary and it was put in place. The appellant appealed and this was refused with the Appeal court concluding: “The sentencing sheriff correctly noted that section 234AZA required him to consider the imposition of a non-harassment order.

His interpretation of that section was that it was weighted in favour of the granting of such an order unless satisfied that it would be unnecessary to do so. In considering that issue, he had regard to the Crown narration, the appellant’s offending history and the terms of the CJSWR. He did not consider that ‘arguable grounds existed’ to demonstrate why a non-harassment order would be unnecessary… While the views of the victim may be “relevant” in considering necessity…Even if the factors relied on by the sheriff do not all positively point to the necessity for an order – and some of them do, in particular the fact that this offence occurred so soon into the relationship, against a background of a history of domestic offending by the appellant – there is no basis for arguing that they should have led the sheriff to conclude that here was no necessity for such on order” The appeal was therefore refused.

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