Act: Wolffe QC; Morton Fraser LLP

Alt: Frazer; Drummond Miller LLP (for Haddon & Turnbull, Hawick)

Alt: J MacDonald; Drummond Miller LLP (for Andrew Haddon & Crowe WS, Hawick)

17 January 2014

Statutory provisions
[1] Sections 104 and 105 of the Sexual Offences Act 2003 allow a court to make a Sexual Offences Prevention Order (SOPO). First, under subsection 104, a criminal court can make a SOPO when it "deals with" an offender for certain specified sexual crimes (s 104(2)). Secondly, a civil court can impose a SOPO on the application of the police in respect of a "qualifying offender" (s 104(5)). The process is by summary application (s 112(1)(e)) in the sheriffdom where the person lives, is present or is going to be (ibid). A qualifying offender is a person who has been convicted either of a crime of violence (sch 5) or of a sexual offence (sch 3), other than one which has been declared by the court to contain a significant sexual aspect in terms of paragraph 60 of schedule 3 (s 106(5)-(6)). Thirdly, the police can also apply for a SOPO when the person has been convicted of an offence which the court has declared to contain a significant sexual aspect (ie under para 60) or which, if the Act had been in force, the court would have so declared (s 105(1)). The latter is also sought by summary application to the sheriff at the places already referred to (s 105(2)). Thus far, the legislation may be elaborate, but it is understandable.

[2] Section 108 permits either the police or an offender to apply to the court "for an order varying, renewing or discharging" a SOPO. Section 109 allows the court to make an interim SOPO. An interim SOPO must be for a fixed period in advance of the determination of "the main application" (s 109(4)). The police or the offender can seek to have such an order "varied, renewed or discharged" (s 109(6)).

[3] Section 112(1) provides, inter alia, that, in relation to Scotland:

"(ea) an application for an interim sexual offences prevention order -

(i)             is made by way of the main application; or

(ii)            if the main application has been made, is made, by application to a sheriff for the sheriffdom of the sheriff to whom the main application was made, by the person who made that application...".

The use of the words "is made" contrasts with the more permissive "may make", "may be made" and "may apply" found elsewhere (see ss 104(1) and (5), 105(1), 108(1) and 109(2)), but the provision appears relatively straightforward. In the usual way, it permits an interim SOPO to be made either: (i) when there is a corresponding crave in the Initial Writ commencing the summary application (Act of Sederunt (Summary Applications ... etc Rules) 1999 rule 2.4); or (ii) if not, by a separate "application" (ie motion) to the sheriff before whom the Writ is pending. Indeed, rule 3.25.7(1) of the 1999 Rules requires that any application for an interim SOPO is to be made by "crave in the initial writ" and subsequent motion; suggesting that, if there is no crave in the original writ, a crave must be added, presumably by amendment.

[4] Section 112(1) continues:

(f)             an application for the variation, renewal or discharge of a sexual offences prevention order ... or an interim sexual offences prevention order is made by summary application to the sheriff who made the order or to the sheriff - [at the other jurisdictional locations (supra)] ..."

This is thought to create a potential problem, in so far as it may suggest that an interim SOPO, which may have been granted within the main summary application process, requires a separate summary application for its "renewal".

Background
[5] On 1 March 2013, the appellant lodged a summary application seeking a SOPO and an interim SOPO in respect of the first respondent. The SOPO sought was one which prohibited the first respondent from: communicating unsupervised with any child under 17; communicating with any "lone adult female" in any "solitary location"; and living anywhere without a prior risk assessment and approval. It required him to permit the police access to his home and any phones, computers and other electronic devices connectable to the internet. The crave in the Initial Writ sought the grant of "said Order ad interim". The crave for the interim SOPO contained no fixed time period. The sheriff granted an interim SOPO in the terms sought on an ex parte application, to have effect until 4 April 2013. On that date, on the first respondent's motion and "of consent", the interim SOPO was allowed "to continue" apparently, although the interlocutor is not precise on this, until a hearing fixed for 2 May. On that date, again on the first respondent's motion but this time "unopposed", the SOPO was continued and "in terms thereof" a new interim SOPO was made. This was to last until 27 June, when a further interim SOPO was made "of New" for the period to 8 August, when a hearing was scheduled to take place. This new interim SOPO was in much more restricted terms and prohibited the respondent from unsupervised contact with children under 16. On 8 August, a new hearing was fixed for 4 October "at which evidence will be led". The interim SOPO was not renewed. The "proof" was discharged on 12 September 2013 and the cause sisted "for investigation".

[6] Separately, the appellant made a summary application seeking a SOPO in respect of the second respondent. The crave (following amendment) was restricted to prohibiting the respondent from communicating unsupervised with children and from consuming alcohol in public. It sought "an interim" SOPO imposing these requirements, but again with no time limit specified. However, the interim SOPO granted not only prohibited the respondent from communicating unsupervised with a child under 17, it also prohibited him from: living anywhere without a prior risk assessment and approval; entering any house uninvited; and consuming alcohol in a public place, as well as requiring him to permit the police access to his house. The interim SOPO granted was from 22 January 2013 to 7 February 2013. On the latter date, the sheriff made a new interim SOPO. There was no time limit attached to it. On 4 April, the interim SOPO was continued "until 2 May ... within the Sheriff Courthouse ...". On 2 May, as in the first respondent's case, the interim SOPO was continued but "in terms thereof" a new interim SOPO was made with (perhaps) an expiry date of 27 June. On that date "of New" another interim SOPO was made to last until 8 August 2013. On 8 August there was no application to continue the interim SOPO but a hearing was fixed for 27 September. On the day before that, a new interim SOPO was made, with an expiry date of 31 October. This prohibited communication with children "excepting" 2 nieces, interdicted the second respondent from buying or consuming alcohol and required him to provide a breath test if required to do so. It excepted his own house from those which he could not enter uninvited. On 31 October, yet another interim SOPO in similar terms was made and was to "continue" to 9 January 2014.

[7] Meantime, however, with the consolidation of Scotland's police forces, the appellant had become concerned about divergences in practice in different sheriffdoms. Whereas the procedure in the respondents' cases reflected what occurred in Lothian & Borders, to the extent that interim SOPOs were "continued" or made "of New" in the same original process, a different procedure was adopted in Glasgow & Strathkelvin and other sheriffdoms in the former Strathclyde Region area. There, following a stricter reading of the statutory provisions (supra, s 112(1)(f)), it was not considered that a "continuation", as distinct from a "variation, renewal or discharge", of an interim SOPO was competent in the same process. Rather, every continuation or renewal required a separate summary application.

[8] Accordingly, the appellant raised separate summary application proceedings in respect of each respondent seeking "to renew" the interim SOPOs with effect from 4 April and 27 June 2013 respectively. Following the procedure adopted in Lothian & Borders, the sheriff, ex proprio motu, dismissed the applications due to the existence of the original proceedings. The appellant, remaining concerned about the different procedural stances, appealed the dismissals to the sheriff principal, who refused the appeals on 23 August 2013.

The determinations of the Sheriff and Sheriff Principal
[9] The sheriff was concerned that, despite the existence of the main summary applications, each of which had craves for interim SOPOs and in which interim SOPOs had been made, the appellant had lodged separate summary applications for "renewal" of the interim SOPOs. He considered that, once an interim SOPO had been made in the principal process, it could be "continued" without a further summary application for its "renewal".

[10] The sheriff principal held that summary application procedure was sufficiently flexible to permit any number of applications to be made to renew or continue an interim SOPO by motion in the same process (Sheriff Courts (Scotland) Act 1907, s 3(p); Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999, rule 2.31). Section 112(1)(f) did not displace those powers or derogate from the ancillary nature of interim SOPOs relative to the original or main application. A separate Initial Writ was not required for applications to renew an expiring, or expired, interim SOPO.

[11] If that interpretation were wrong, the Sheriff Principal reasoned that a distinction could be drawn between the "continuation" of an interim SOPO and its "renewal"; the latter requiring the grant of an interim SOPO, of new, following its expiry. In contrast, the interim SOPOs in the present cases had been properly continued in the sense of being prolonged, maintained or extended. Such orders were not "renewals" and were competent orders ancillary to the main application.

[12] The Sheriff Principal held that, notwithstanding the clumsy drafting of the procedural modifications applicable to Scotland, it had been the intention of Parliament that summary application procedure would be adopted. In that context, it was inconceivable that Parliament could have intended that separate applications were required for every variation, renewal or discharge. That would result in a multiplicity of applications, with consequent confusion and complexity, contrary to the interests of fairness and justice.

Submissions
Appellant
[13] The appellant maintained that there were two possible constructions of sub-section 112(1)(f) of the 2003 Act. The appellant was content with either, provided a uniform procedure was established. The preferred construction was that, as the sub-section said, an application for the renewal of an interim SOPO required a summary application, separate from the process in which the interim SOPO had originally been sought and granted. In that regard, the legislation had contemplated that, whether craved in the Initial Writ or added later, an application for an interim SOPO ought to be for a fixed period, although it would expire on the earlier determination of whether to make the SOPO itself (s 109(4)). For renewal, Parliament expected a new application justifying, in writing, the extended period. The alternative was that an application for renewal could be made by motion in the original process. Although the sheriff and sheriff principal had considered this procedurally simpler, that was because of the manner in which defended cases were being dealt with in Lothian & Borders; with frequent "continuations" of a process which was intended to be summary in nature. If an interim order of sufficient length to cover the likely period for the determination of the main application were made, repeated requests for renewals could be minimised.

[14] No distinction could properly be drawn between a "continuation" and a "renewal" of an interim SOPO. The 2003 Act made no express provision for the "continuation" of unexpired orders but the "renewal" of such orders encompassed their "continuation" (cf 2003 Act, s 112(1)(g) and (h), s 112(1A)). The requirement for a new Writ ensured fair notice of the basis for any extension in recognition of the potentially restrictive nature of the conditions which may be applied to an offender in an interim SOPO.

First respondent

[15] The reasoning of the sheriff, as upheld by the sheriff principal, was, it was contended, correct. Separate applications would be unnecessarily costly, time-consuming, confusing and potentially oppressive. An application, whether that envisaged by sub-sections 112(1)(ea) or (f), could be made by motion in the original process. Rules 3.25.7(1) and (2) of the 1999 Rules made it clear that an interim SOPO could be sought by a crave in the Initial Writ and, once craved, by motion to that effect, subject to the necessity of requiring a separate application where a different sheriff court from that dealing with the main application was involved. The rules were entirely consistent with the primary statutory provisions and the sheriff principal's approach.

[16] In any event, the sheriff principal had been correct to distinguish between the "continuation" and the "renewal" of an interim SOPO. In the case of the first respondent, the interim order granted in the original process had not come to an end and had, therefore, been properly continued.

Second respondent

[17] On a fair reading of the 2003 Act, Parliament had intended that interim SOPOs would be ancillary to applications for SOPOs and would only exist pending the determination of the main application. The summary application referred to in sub-section 112(1)(f) was the application seeking a SOPO in terms of section 104. Where the Initial Writ contained a crave for an interim SOPO with relevant supporting averments, the renewal, discharge, or variation of any interim SOPO made could be sought by oral or written motion in that application.

[18] Whilst the word "continuation" did not appear in the 2003 Act, the power to continue such orders was conferred by rule 2.31. A continuation would be appropriate where an extension of an existing order was required. Such an extension would not contravene section 109(4) of the 2003 Act, in terms of which interim SOPOs were granted for determinate periods.

[19] SOPOs, interim or otherwise, had the potential to interfere with a person's rights under Articles 8 and 11 of the European Convention on Human Rights. They had to be proportionate. The requirement of proportionality extended to the procedural steps involved in obtaining the orders, as well as the terms of the orders themselves. Subjecting the second respondent to multiple applications, on similar or identical facts, could be disproportionate and contrary to Article 8(2). It may also be oppressive. The appellant's approach would remove the practical purpose of SOPOs, and would risk offenders being subject to multiple and differing interim SOPOs, which cannot have been the intention of Parliament.

Decision
[20] A SOPO may be made by a criminal court which is dealing with an offender or by a civil court on the application of the police. When made by a civil court, an interim order must be made for a fixed period, pending determination of the main summary application (2003 Act, s 109(1) to (4)). The main application will be to the sheriff court where the offender: lives; is present; intends to go; or has behaved in a particular way (ss 105(2); 112(1)(e)). An interim SOPO may be applied for in the Writ initiating the summary application or, if that has not been done, by a new summary application. An application to vary, renew or discharge a SOPO obtained in civil proceedings or an interim SOPO "is made" by summary application to the sheriff who made the order or to a sheriff where the offender lives, is present or intends to go (s 112(1)(f)). An application to vary, renew or discharge a SOPO made in criminal proceedings is made to the High Court (if that is the court which made the order) or to the sheriff court where the offender lives, if that is different from the sheriffdom in which the original order was made, and otherwise to that sheriffdom.

[21] An application for variation, renewal or discharge of a civil SOPO or an interim SOPO may be made to a different sheriff from that before whom the main application is made. There will therefore be cases in which the sheriff renewing a SOPO will be doing so in a different sheriffdom. In that situation a new initiating writ will be required in that court. The legislation covers that situation by prescribing that it should be by way of summary application. However, that is not to say that every application requires a new process. Where there is already a process in which an interim order has been craved, the existence of that crave ought to form a sufficient basis for any application to renew an existing interim order which is about to expire or has already done so.

[22] The court agrees with the Sheriff and Sheriff Principal that an interpretation that requires separate summary applications, and related processes, would introduce a multiplicity of actions and complexity of procedure, which it is the purpose of summary application procedure to avoid. It should not lightly be assumed that Parliament so intended. The use in sub-section 112(1)(f) of the phrase "is made by summary application to the sheriff who made the order" should be understood to mean that the request for variation, renewal or discharge of an interim SOPO should be made within any summary application process subsisting in the relevant sheriffdom. Accordingly, where the application to vary, renew or discharge an interim SOPO is made in the same sheriffdom, no separate initiating writ is required. The existence of a crave for an interim order will, provided the crave itself is not expressly time limited, permit the sheriff to vary, renew or discharge it. However, that assumes that the crave for the SOPO contains all the elements required in the motion for any variation at the instance of the police and that the averments in the Writ, coupled with the formal information regarding the progress of the action, are sufficient to justify any variation or renewal. If they are not, it is likely that written amendment will be required; thus providing the offender with fair notice of what is being sought and the basis for it.

[23] There is no distinction between "continuing" an interim SOPO and a renewal of it. The correct terminology, where it is determined that an interim SOPO is to continue in force beyond its expiry date or when an interim SOPO has expired but is to be revived, is renewal. Any interlocutor should reflect that. It is particularly important that interlocutors granting or renewing interim SOPOs are clear in their terms, including the duration of the order. From the narrative of the procedure in these cases, it is not apparent that a suitable level of consistency was achieved at all times. The original interim SOPO and any renewal must be for a fixed period. The date on which the order is to expire must be specified. The period selected should normally reflect the time which it is reasonably predicted it will take for the SOPO itself to be determined. Given that the procedure is intended to be summary, this period should be relatively short and continuations in the process ought to be rare. Since in all cases the court must consider whether the period specified is just, it is not appropriate to make an interim order which has as its expiry date that of the determination of the main application even if the interim SOPO will, of course, expire upon that determination.

[24] The appeals are accordingly refused.