Lord Bonomy, sitting with Lord Hardie and Lord Wheatley at the Appeal Court, said that, while David Hatcher’s behaviour caused upset and distress to his wife Lorraine, there was no public element to the alleged crime and, under existing legislation, his behaviour could not be classed as breach of the peace.
Lord Bonomy said: “Albeit the appellant’s conduct caused upset and distress to the complainer, and would have done to any reasonable person, it occurred within areas of the family home exclusively occupied then by the couple and did not threaten the public peace.
“It occurred entirely in private and was not a public disturbance. That is not to say that the conduct of the appellant should be condoned or tolerated.”
He added: “Robinson Crusoe directing a tirade of abuse at Man Friday on an otherwise deserted island would not be guilty of a breach of the peace.”
However, a new offence of threatening or abusive behaviour, which does not include the need for a public element, has now been passed by the Scottish Parliament to close the loophole, although it is not yet known when it will come into force.
Mr Hatcher, 47, was found guilty of breach of the peace at Hamilton Sheriff Court, which heard that Mrs Hatcher called the police to the couple’s semi-detached home in Wishaw, during a blazing row on the evening of January 7.
The argument started when Mrs Hatcher, a technical instructor in an occupational therapy department, told her husband she had been invited out for a meal with colleagues. In his findings, Sheriff Brian Donald said this sparked an argument because of an issue that had arisen when Mrs Hatcher went to an office party just before Christmas.
The sheriff said Mr Hatcher, who is understood to have moved out of the family home in March, became “upset, angry and apprehensive of her fidelity due to her meeting another man at that previous evening outing, despite the fact she had openly told him about the situation and discussed it with him”.
During the argument, he shouted at his wife repeatedly, swore at her and at one point called her several obscene names, said the sheriff.
Two of the couple’s three children, who were 12 and 15 at the time, were in their bedrooms during the row and the sheriff said that Mr Hatcher’s behaviour “was likely to have caused serious fear and alarm” to the teenagers.
However, Lord Bonomy said that Mrs Hatcher had given evidence saying she did not think her children were aware of the argument. He added that, even if they had heard the row, their father’s actions would still not be classed as breach of the peace.
The judges said: “The threat of such disturbance to the children within the household by an oral tirade of abuse and other unreasonable behaviour extending over a considerable period directed by their father towards their mother does not contain any element that can be characterised as public.”
Lord Bonomy said there were occasions when breach of the peace could occur between family members in a private property. But he added: “The facts of the present case contained no feature that could be described as a public element.”
The Criminal Justice and Licensing (Scotland) Act, which received royal assent on August 6, will make it a crime to behave in a manner that would cause a reasonable person to feel fear and alarm, regardless of whether there is a public element or not.