Introduction

This appeal from the Scottish High Court of Justiciary (Appeal Court) addresses a Crown challenge to the sentence imposed on Charles Fletcher following conviction, after trial on sheriff court indictment, for a sustained course of domestic abuse across several years. The case sits at the intersection of three important currents in Scots criminal law: the recognition (under the Domestic Abuse (Scotland) Act 2018) of insidious, non‑physical forms of domestic abuse; the statutory restriction in section 204(2) of the Criminal Procedure (Scotland) Act 1995 making imprisonment a last resort for first‑time adult offenders; and the need for sentencing packages to include robust, tailored protective measures and restitution for victims.

At first instance the sheriff imposed, in cumulo, a Community Payback Order (CPO) comprising 3 years’ supervision and the maximum 300 hours unpaid work, along with a 10‑year non‑harassment order (NHO). The Crown appealed on undue leniency, contending that a custodial sentence was the only appropriate response. The Appeal Court (Lord Justice Clerk, Lord Matthews and Lord Armstrong; opinion by Lord Beckett LCJ) partly allowed the appeal—not by imposing custody, but by holding the protective and reparative elements insufficient. The Court quashed the sentence and passed a new one with an indefinite NHO explicitly covering digital harassment, a recalibrated CPO to reflect work already done, and a compensation requirement.

The decision crystallises an important precedent for domestic abuse sentencing: serious digital and coercive control conduct must be treated as aggravating and harmful even when physical violence is limited; where no legitimate contact remains, an indefinite, digitally‑tailored NHO will often be the appropriate protective measure; documented financial loss should prompt consideration of compensation; and notwithstanding seriousness, section 204(2) continues to anchor custody as a last resort for an adult first offender showing meaningful rehabilitation.

Summary of the Judgment

• Facts: Fletcher was convicted of threatening or abusive behaviour in 2013–15 and a course of abusive conduct (2019–2023) contrary to section 1 of the Domestic Abuse (Scotland) Act 2018 (DASA). His conduct included property destruction, violence, threats (notably leveraging the complainer’s fear of fire), isolation tactics, financial interference, and extensive digital manipulation (account takeovers, password changes, tracing to a refuge, and social media control).
• Sheriff’s sentence: A CPO (3 years’ supervision, 300 hours unpaid work) as a direct alternative to custody, and a 10‑year NHO. The sheriff did not impose compensation and did not address the complainer’s request for an indefinite NHO with digital restrictions.
• Crown appeal: Alleged undue leniency; argued custody was required given the gravity and harm, including digital abuse. Invoked HM Advocate v CJB [2019] HCJAC 45.
• Appeal Court’s decision:
  • Recognised the offending was serious and merited custody in principle, particularly the pernicious digital abuse and coercive control, reflecting the harms targeted by DASA s1.
  • Nevertheless, affirmed that section 204(2) of the 1995 Act makes custody a last resort for a first‑time adult offender unless no other method is appropriate; found the sheriff’s overall choice of a robust CPO within that statutory framework to be within the reasonable range given demonstrable rehabilitation and public protection through supervision.
  • Held, however, that the protective element was inadequate: the NHO should have been indefinite and expressly cover digital interference; and the sheriff erred in not considering compensation despite clear evidence of loss.
  • Outcome: Sentence quashed and re‑imposed as follows:
    • Indefinite NHO with explicit prohibitions on contact and digital impersonation/access.
    • CPO with 2 years 7 months supervision and 250 hours unpaid work (allowing for 50 hours already completed), as a direct alternative to imprisonment, unpaid work to be completed within one year.
    • Compensation requirement of £3,600 to the complainer, payable £200 per month.

Detailed Analysis

1) Precedents and Authorities Cited

HM Advocate v CJB [2019] HCJAC 45. The Court revisited its earlier guidance that section 204(2) of the 1995 Act imposes a clear Parliamentary policy: imprisonment for an adult first offender is a last resort, to be used only where no other method of dealing with the person is appropriate. In CJB, a CPO was upheld despite serious domestic violence (including against children), as a lawful alternative within the statutory constraint. In Fletcher, the Court emphasised that while the present case was less violent than CJB, the non‑physical abusive conduct—particularly digital control—could be equally or more damaging and must be weighed heavily.

Statute: Criminal Procedure (Scotland) Act 1995, s204(2). Quoted by the Court, s204(2) continues to bind sentencers: if the offender is aged 21+ and has not previously been imprisoned or detained, custody can only be imposed where no other method is appropriate. The Court applied this as a central constraint, even in a serious domestic abuse case.

Statute: Domestic Abuse (Scotland) Act 2018, s1. The Court accepted the Crown’s broader point: s1 marks societal and legislative recognition of the “insidious, varied, sometimes subtle, but often very damaging” forms of domestic abuse, extending well beyond physical assault to encompass coercive control, intimidation, isolation, and economic and digital abuse. DASA thus informs the gravity assessment even where physical injuries are not the dominant feature.

Procedural note: Incompetent aggravations. Domestic aggravations libelled in charges 1 and 2 were incompetent because the statutory provision was not in force when those offences were committed. The Court deleted the aggravations and criticised the Crown for erroneously founding on them in written submissions, underscoring the importance of temporal competency in aggravations.

2) Legal Reasoning

Seriousness and harm—beyond visible violence. The Court was explicit: violence “is not necessarily the most serious” aspect of domestic abuse. Here, digital manipulation was “spiteful, calculated, pernicious and extremely damaging”, causing prolonged disruption, isolation and anxiety. The sheriff’s suggestion that the digital interference did not require “sophistication” was beside the point; the harm and intent mattered more than technical complexity.

Custody vs community disposals under s204(2). The Court accepted that the offending could have justified prison. However, s204(2) requires a sentencer to prefer non‑custodial methods where appropriate for a first‑time adult offender. The sheriff had properly identified punishment, rehabilitation, deterrence and public protection as relevant aims and, crucially, determined that a structured CPO with maximum unpaid work and sustained supervision could meet those aims better than a short custodial term—especially given:

• Substantial post‑offence rehabilitation (abstinence from alcohol/drugs, stable employment, new relationship with positive social work assessment, willingness to engage in mental health support).
• The protective capacity of a lengthy supervision requirement for the new family unit versus a short prison term that would only delay risk without addressing it.
• The punitive and deterrent value of 300 hours of unpaid work as a direct alternative to imprisonment, coupled with the ready consequence of custody in the event of breach.

Where the sheriff erred: protection and reparation. The Court considered two clear omissions rendered the sentence unduly lenient:

• NHO duration and scope. The complainer had asked for an indefinite order, highlighting the distress and practical burdens of renewing protection and the specific risk of digital harassment. There was “no reason” for any future contact and no explanation for limiting the order to 10 years. Given the facts, an indefinite NHO with explicit digital prohibitions was required.
• Compensation. The victim impact statement documented significant financial loss (>£3,000) due to the abuse. The sheriff did not consider a compensation requirement; the Court “fail[ed] to understand why” and, noting the respondent’s means and willingness to pay, imposed compensation.

Remedy. Rather than substitute custody, the Court re‑engineered the sentence to cure the protective and reparative deficits:

• Indefinite NHO with detailed prohibitions on contact, threats, deliveries, and, critically, digital harassment (impersonation and access to domains/accounts).
• CPO remained the principal disposal, adjusted only to reflect 50 hours already completed and time on supervision: 2 years 7 months’ supervision and 250 hours unpaid work to be completed within one year.
• Compensation of £3,600 at £200 per month.

3) The Impact of the Judgment

Recalibrating seriousness assessments in domestic abuse. Sentencers must ascribe substantial weight to non‑physical forms of harm—especially digital coercion and identity interference—when assessing culpability and harm under DASA s1. Minimising such conduct because it is not “technically sophisticated” is an error; the measured harm and intent govern.

Protective orders: default to indefinite where no legitimate contact exists. Where a relationship has ended and the complainer identifies ongoing risks (notably digital harassment) and the burden of renewals, an indefinite NHO with explicit digital prohibitions should now be treated as the norm absent a good reason to limit duration. Failure to address digital modalities may render a sentence unduly lenient.

Compensation is integral, not ancillary. Where loss is evidenced, courts should actively consider compensation within a CPO. This is not a mere add‑on; it is part of making amends and addressing the tangible harm of domestic abuse.

Custody remains constrained for first‑time adult offenders. Even for serious domestic abuse, s204(2) anchors imprisonment as a last resort. If a robust CPO with supervision can credibly deliver punishment, deterrence, rehabilitation and public protection, it will be difficult to label such a sentence unduly lenient. The appeal court may prefer to correct protective and reparative deficits over substituting custody.

Appellate practice in undue leniency appeals. This judgment illustrates a nuanced appellate response: the Court will not reflexively increase punitiveness where the statutory framework and rehabilitative evidence justify a community disposal; but it will intervene decisively to strengthen protection (NHO terms) and reparation (compensation) where inadequacies exist.

Operational lessons for the Crown and defence.

• Crown: Ensure aggravations are temporally competent; avoid overstatement (the Court noted the incorrect “10 years of offending” refrain). Present concrete proposals for protective digital conditions and compensation supported by evidence of loss.
• Defence: Demonstrate meaningful post‑offence rehabilitation and openness to supervision; be ready to propose practical NHO terms and a viable compensation plan aligned to means.

Complex Concepts Simplified

• In cumulo sentence: A single sentence covering multiple charges. Here, one CPO covered all three convictions.
• Community Payback Order (CPO): A community sentence allowing the court to combine requirements such as supervision (structured oversight and rehabilitative work), unpaid work (punitive, direct alternative to custody), and compensation (payments to victims). Breach can lead to custody.
• Non‑Harassment Order (NHO): A court order prohibiting harassment and contact. In criminal cases it can be imposed on conviction. Duration can be time‑limited or indefinite. Breach is a criminal offence. Fletcher emphasises the need to tailor NHOs to digital abuse (e.g., impersonation, account access) where such risks exist.
• Domestic Abuse (Scotland) Act 2018, s1: Creates the offence of engaging in a course of behaviour abusive of a partner or ex‑partner. It captures coercive control (isolation, financial control, threats, intimidation), not just physical assault.
• Section 204(2), Criminal Procedure (Scotland) Act 1995: For offenders aged 21+ who have not previously been imprisoned/detained, the court must not impose imprisonment unless it considers no other method of dealing with the person is appropriate. In practice, custody is a last resort for adult first offenders.
• Unduly lenient (Crown appeal): The Crown can appeal if the sentence falls outside the range of sentences a reasonable judge could impose, given the law and facts. The test is not whether the appeal court would have passed a different sentence, but whether the original sentence was plainly wrong in principle or manifestly inadequate.
• Incompetent aggravation: An aggravating label is “incompetent” if the statutory aggravation was not in force at the time of the offence or is otherwise not legally applicable. Such an aggravation cannot stand and should not inform sentence.
• Caledonian Programme: A behaviour‑change programme addressing domestic abuse perpetration. Its availability can affect the design of supervision but is not determinative; other forms of offence‑focused work can be structured within supervision.

Practical Guidance Extracted from the Judgment

• When digital abuse is proved (password changes, impersonation, account control, tracing to refuges), it must be treated as a serious aggravating feature because the harm is profound and prolonged even if the methods were not technically sophisticated.
• Where the complainer has no reason to have future contact with the offender, an indefinite NHO is often appropriate; courts should explain any departure from that approach.
• NHOs should be digitally specific: they should prohibit impersonation, access to domains and accounts, and any indirect communication techniques facilitated by technology.
• Compensation should be actively considered where there is documented financial loss flowing from the offending; affordability can be accommodated through instalments aligned to means.
• For adult first offenders with credible rehabilitation, a robust CPO with meaningful unpaid work and extended supervision can satisfy punishment, deterrence, protection and rehabilitation, consistent with s204(2).
• Accuracy matters: do not rely on aggravations not in force at the material time, and avoid misstatements of the offending period.

Selected Text: The Indefinite, Digitally‑Tailored NHO

The Court’s new order provides a useful model for practice (abridged for emphasis):

“... refrain from: Abusing the complainer ... by sending her deliveries and letters, contacting and communicating with her by any means including telephoning her, text messaging her, emailing her, by posing as her online, or by using or accessing any online domain belonging to her, or by using or accessing any online account belonging to her, and from approaching her; and from attempting to do any of these things.”

This language operationalises protection in the digital sphere and should inform drafting of NHOs in cases involving online harassment or control.

Conclusion

Fletcher reshapes domestic abuse sentencing practice in a pragmatic, victim‑centred direction without jettisoning the statutory discipline of section 204(2). Its core messages are clear:

• Coercive control and digital abuse are serious harms and must be reflected in sentencing assessments even where physical violence is less severe.
• For an adult first offender who has embarked upon meaningful rehabilitation, a well‑constructed CPO can remain appropriate; custody is still a last resort.
• Protective measures must be fit for purpose: where there is no legitimate future contact, indefinite NHOs that are expressly digitally‑tailored should be imposed.
• Compensation is not optional window dressing; where loss is proved and means permit, it should be ordered.
• Accuracy and legal competency in aggravations and submissions are essential, particularly in appellate proceedings.

The judgment thus establishes a concrete, practicable framework: pair robust community sentences that address risk and rehabilitation with strong, digitally informed protective orders and compensation. In doing so, it honours both the modern understanding of domestic abuse under DASA s1 and Parliament’s long‑standing policy that imprisonment is a last resort for first‑time adult offenders.