Crown Appeal against Sentence by His Majesty's Advocate against Charles Fletcher (High Court of Justiciary)

Factual and Procedural Background

This is an appeal by the Appellant against sentence imposed on the Respondent following conviction after trial in the sheriff court on three charges alleging domestic abuse. On 13 March 2025 the sheriff imposed, in cumulo, a community payback order as a direct alternative to imprisonment. That order comprised a supervision requirement for three years and an unpaid work requirement of 300 hours (the maximum). The sheriff also made a non-harassment order (NHO) in favour of the complainer for a period of 10 years. The Appellant (the Crown) appealed on the ground that the sentence was unduly lenient and that a more severe sentence should have been imposed.

Two procedural points of note: charges 1 and 2 originally included a domestic aggravation that was incompetent because the statutory provision relied upon was not yet in force when the conduct occurred. At the hearing the Advocate depute moved to delete those aggravations, no objection was taken, and they were removed. The Crown's note of appeal initially contained an inaccuracy suggesting a continuous 10 years of offending; the court observed there was in fact a gap of four years between the periods covered by charges 2 and 3.

The three charges as presented at trial may be summarised as follows (locations and specific street addresses are anonymised):

• Charge 1 (period in 2013–2014, at an address): threatening or abusive behaviour likely to cause fear or alarm; shouting and aggressive conduct towards the complainer; damage to an interior door with a racquet; contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.
• Charge 2 (period in 2015, at an address): threatening or abusive behaviour towards the complainer and damage to items within the property; contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.
• Charge 3 (period 2019–2023, at various locations): a course of conduct abusive of the complainer contrary to section 1 of the Domestic Abuse (Scotland) Act 2018. The charge included a lengthy range of acts (summarised in the judgment) such as repeated shouting and aggressive behaviour, physical assaults and acts causing injury, attempts to damage or force a motor vehicle off the road, removal of funds from a joint account without permission, repeated damage to property, threats and acts calculated to exploit the complainer’s fear of fire (including setting small fires), control of the complainer’s access to telephones and digital accounts, placing intimate images on display, tracing the complainer to a new address and attending uninvited, and rehoming the complainer’s pets without consent.

Following conviction the sheriff heard evidence and received reports, including a social work report and a victim impact statement. The sheriff accepted that the offending merited a custodial sentence in principle but concluded that rehabilitation prospects and other factors justified a community payback order as an appropriate direct alternative to imprisonment. The Crown challenged that assessment on appeal.

Legal Issues Presented

1. Whether the sentence imposed by the sheriff was unduly lenient such that the Appeal Court should interfere and impose a more severe sentence.
2. Whether the sheriff erred in her assessment of the Respondent’s culpability and the severity of harm, having regard to the full course of offending (including digital interference and exploitation of the complainer’s fear of fire).
3. How the statutory restriction in section 204 of the Criminal Procedure (Scotland) Act 1995 (as explained in the judgment) — that custody for a person over 21 who has not previously been sentenced to imprisonment should be a last resort — should be applied in the circumstances of this case.
4. Whether the duration and terms of the non-harassment order were appropriate, in particular whether an indefinite order and express provision addressing digital interference should have been made.
5. Whether the sheriff should have considered or imposed a compensation requirement to address the complainer’s financial losses.

Arguments of the Parties

Appellant's Arguments

• The introduction of section 1 of the Domestic Abuse (Scotland) Act 2018 recognises the varied and insidious nature of domestic abuse; the court should treat such offending seriously.
• The Respondent’s conduct involved a combination of physical assaults, destruction of property, threats about fire and sustained digital interference/hacking; these features made the offending particularly serious, controlling, manipulative and partly premeditated.
• The victim impact statement demonstrated high levels of harm (physical, psychological and financial) and the sheriff failed to recognise the full gravity of the offending as a whole.
• A community payback order (unpaid work and supervision) was insufficient to achieve sentencing objectives of punishment, protection of the public, rehabilitation and denunciation; only a custodial sentence was appropriate.
• The Crown noted an error in the original appeal note (an assertion of 10 years’ continuous offending) but relied on the substantive contention that the sentence was too lenient.

Respondent's Arguments

• The precedent relied upon by the Appellant (HM Advocate v CJB) did not support interference with the sheriff’s disposal in this case because the level of physical violence here was substantially less than in that case and other material differences existed.
• The Respondent had made substantial life changes since the offending ceased (abstention from substances, sustained employment, relocation, a new relationship, caring role) and there was no evidence of offending in his new relationship; imprisonment would have a significant collateral impact on his new family and his employment.
• The sheriff identified appropriate sentencing objectives (punishment, protection, rehabilitation, denunciation and opportunity to make amends) and a community payback order with supervision and unpaid work met those objectives in the particular circumstances.
• The Respondent had completed part of his unpaid work requirement (50 hours) and had good reports from his unpaid work supervisor and from social work during supervision.
• The Respondent and his legal representative had been willing to pay compensation; the issue of compensation had been raised but the sheriff did not consider it at sentence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court’s analysis proceeded in the following principal stages, drawn from the reasoning in the opinion.

1. Assessment of the offending as a whole: The court emphasised that domestic offending must be viewed in combination rather than by isolated incidents. While the physical violence in this case was, on the court’s assessment, less severe than in the cited authority (CJB), the totality of conduct — including calculated and sustained digital manipulation, exploitation of the complainer’s fear of fire, financial interference and repeated threats and controlling behaviours — raised the level of seriousness. The court described the digital manipulation as "spiteful, calculated, pernicious and extremely damaging", causing practical disruption, isolation and financial cost to the complainer.
2. Consideration of statutory constraint on custody: The court applied section 204 of the Criminal Procedure (Scotland) Act 1995 (as explained in CJB), which provides that custody for an adult who has not previously been sentenced to imprisonment should not be imposed unless the court considers no other method is appropriate. The court treated this restriction as reflecting a clear Parliamentary intention that custody for such offenders is a last resort.
3. Evaluation of the sheriff’s reasoning and alternatives to custody: The court found that, for the most part, the sheriff had given sound reasons. The sheriff recognised the gravity of the offending but also considered the Respondent’s prospects for rehabilitation, the limited long-term protective value of a short custodial sentence, and the availability of a community payback order with both supervision and a maximum unpaid work requirement as a direct alternative to custody. The court noted that a 300-hour unpaid work requirement imposed as a direct alternative to imprisonment is not insignificant, particularly for someone in full-time employment, and carries a realistic risk of imprisonment upon breach.
4. Consideration of the Respondent’s personal circumstances and progress: The court took account of material indicating substantial change since the offending ceased (abstinence from alcohol and drugs, relocation across the country, stable employment, a new relationship and family responsibilities, engagement with services and willingness to participate in offence-focused work). Social work assessment described the Respondent’s general risk of reoffending as low and suggested that supervision could address domestic offending where the specialist programme referenced was not locally available. The court accepted that these factors weighed in favour of a supervised community disposal rather than immediate custody.
5. Identification of shortcomings in the sentencing exercise: Despite affirming much of the sheriff’s approach, the court identified two significant shortcomings. First, the sheriff made no recorded explanation for fixing the NHO at 10 years rather than making it of indefinite duration despite the complainer’s written request explaining the necessity of a lifelong order and the particular harms caused by digital interference. Second, the sheriff did not address restitution by way of a compensation requirement despite evidence in the victim impact statement of financial loss and the Respondent’s willingness and means to pay by instalments. The court considered these omissions rendered the sentence unduly lenient to that extent.
6. Remedy and re-sentencing approach: Having concluded that the sentence required adjustment on the specific points identified (duration and scope of the NHO and the absence of a compensation requirement), the court quashed the original order and passed sentence afresh. In doing so it sought to retain the core elements that the sheriff had reasonably adopted (a community payback order as a supervised alternative to custody, reflecting the statutory constraint and the Respondent’s rehabilitation prospects) while correcting the deficiencies the court had identified.

Holding and Implications

The court quashed the sheriff's sentence and imposed a new sentence.

The court's operative orders and their direct effects were:

• A non-harassment order in favour of the complainer for an indefinite duration. The order expressly prohibits a specified range of conduct towards the complainer, including verbal abuse, threats, assault, actions calculated to cause fear or alarm, sending deliveries and letters, contacting or communicating by any means (telephone, text, email), posing as the complainer online, using or accessing any online domain or account belonging to the complainer, approaching the complainer, or attempting to do any of these things.
• A community payback order comprising:
  • A supervision requirement for a period of 2 years and 7 months (allowing for the supervision already served).
  • An unpaid work requirement of 250 hours as a direct alternative to imprisonment, to be completed within 1 year (allowing credit for the 50 hours already completed under the original order).
• A compensation requirement of £3,600 in favour of the complainer to be paid to the sheriff clerk at The City in instalments of £200 per month, taking account of the Respondent’s means and the losses recorded in the victim impact statement.

Implications: The immediate legal effect is to increase the protective and reparative elements of the disposal — an indefinite non-harassment order with explicit digital prohibitions and an express compensation requirement — while preserving a supervised community disposal as the alternative to immediate custody in recognition of the statutory constraint applicable to first-time custodial offenders and the Respondent’s rehabilitative progress. The court did not purport to establish a new general sentencing principle; its decision adjusts the sentence in this case to address specific omissions in the sheriff’s exercise of sentencing discretion.

Note: This summary is based only on the content of the provided opinion and does not invent or infer facts beyond that text.