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Entries in Communications Act 2003 (1)


Stay Off Social Media

The Sheriff Appeal Court this week quashed the criminal conviction of a non-resident father who had posted two messages on his estranged partner’s Facebook page relating to her refusal to allow him contact with their son.

The Court ruled that the messages were neither of a “menacing character” nor of a “threatening nature”, and that the sheriff trying the case had erred in convicting him in terms of section 127(1)(a) of the Communications Act 2003.

However the wider lesson from FNF Scotland’s perspective is that parents who are in dispute over arrangements for parenting their children after separation should keep their arguments off social media no matter how upset they are.

The appeal was brought by an Ayrshire man. The case began with a disagreement with his former partner, “EC” about his request for contact with the child they had together, “W”, who was born in October 2011.
After their separation in April 2012 the father had some limited supervised contact with the boy, but relations between the former couple turned sour and the mother no longer allowed contact.
The father had been in prison and before that subject to special bail conditions preventing him from communicating with or contacting the complainer. Following his release the father engaged lawyers to seek contact with his child. The bail conditions no longer applied.  EC refused contact and engaged her own lawyers.
The father then posted two messages on the complainer’s Facebook page at 2.15pm and 2.26pm on 23 November 2015 in the following terms:
“2.15 pm – why are you doing this to spite 'W' against me or something got ur shitty lawyers letter lol must admit quite funny really 'W' doesn't remember me get a grip we both know that aint true please 'E' am begging you a will not screw up with 'W' a love our wee guy and u know a do”; and
“2.26 pm – and also a get tht u hate me and probably wish a was dead but believe me when a tell you a will see 'W' if it kills me a will remember there is no bail or anything now”.

The court was told that the mother became “distressed and upset” on seeing that he had sent the messages – before she had read either. 
She reported the posts to police who charged the father of posting messages of a “menacing character” that were of a “threatening nature”, contrary to section 127(1)(a) of the Communications Act 2003.

At the conclusion of the prosecution case the appellant’s solicitor made a “no case to answer” submission. It was rejected by the sheriff who delivered a guilty verdict.
Allowing the appeal, Sheriff Principal Mhairi Stephen QC sitting with Sheriff Principal Craig Turnbull and Sheriff Michael O'Grady QC, observed that the messages had to be considered objectively in the “context” in which they were sent and that the reaction of the recipient or complainer was “not the determining factor”.
Delivering the 
opinion of the court, Sheriff Principal Stephen said: “The offence of which the appellant was convicted cannot be proved unless the content of the message was of a ‘menacing character’... A menacing message is one which conveys a threat.
“On an objective analysis the first message is in the nature of a plea to the complainer not to turn his son against him. It was conceded that it is unobjectionable. The second message is a continuation of the first and returns to the issue of the child and contact with the child. That, in our view, is the context in which the messages should be assessed.
“In our opinion, had the sheriff made that objective assessment she would have recognised that the messages did not contravene section 127 of the 2003 Act for the very simple reason that the messages lack menace. … Clearly, the messages are directed solely to the complainer, however, on a plain reading and analysis of the messages we decern no threatening or menacing words. Accordingly, it was not open to the sheriff to repel the no case to answer submission.”

Ian Maxwell, FNF Scotland manager, says, “We understand how distressing and painful it is for parents who are in dispute over sharing the parenting of their children - especially when they feel they are being told things that they believe are untrue. But we advise people who contact us to resist the temptation to post comments about the dispute on social media. It doesn’t help. It can damage their cause if it gets to court. And it won’t do their children any good.”