APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Bracadale Lord Osborne	[2012] HCJAC 28 Appeal No: XC317/10 XJ832/10 OPINION OF THE LORD JUSTICE CLERK (1) In the Appeal by IAN HAY Appellant; against HER MAJESTY'S ADVOCATE Respondent: (2) In the Appeal by Stated Case by IAN HAY Appellant; against PF ABERDEEN Respondent: _______

For the appellant: Brown QC, M Mackenzie; Burn & McGregor, Aberdeen

For the Crown: Stewart, QC AD, McGuire; Crown Agent

15 February 2012

Introduction

[1] These are two of seven conjoined appeals relating to the notification provisions of the Sexual Offences Act 2003. The appeals raise general questions as to the circumstances in which the procedure of notification of a convicted offender is necessary or appropriate. For a proper understanding of the appeals, I shall begin by tracing the background to the legislation and setting out the relevant provisions.

The legislation

Background

[2] The Sex Offenders Act 1997 (the 1997 Act) introduced a requirement for certain categories of sex offenders to notify the police of their names and addresses. The Act made it an offence for an offender to fail to register this information or to fail to update it. The period of time for which this requirement applied varied according to the seriousness of the offence. In some cases it was indefinite. The purpose of this legislation was to provide the police with up-to-date information on the whereabouts of sex offenders and thereby to allow better assessment and management of the risk that they presented to the public.

[3] In 1998, in light of a report by the Chief Inspector of Social Work on the supervision of sex offenders, the Scottish Executive appointed an Expert Panel on Sex Offending chaired by Lady Cosgrove. In its report Reducing the Risk: Improving the Response to Sex Offending (2001) (the Cosgrove Report) the Panel made several recommendations for the better management and supervision of sex offenders. It proposed that the schedule of offences to which the notification requirements applied should be extended.

[4] The Panel also proposed that on a conviction for a non-scheduled offence, the court should have a discretionary power to make a notification order against the offender. This was its proposal.

"We also consider that where an offender is convicted of any offence which is not an offence specified in the Schedule but where the evidence discloses that there was a significant sexual element in the offender's behaviour, such as to warrant additional measures to protect the public from the risk posed by the offender, the court should have a discretionary power to order notification, subject to a right of appeal against such an order by the offender" (p 60).

The Panel's recommendation was as follows:

"The requirement to provide notification under the Sex Offenders Act 1997 should be extended to include any offender convicted of any crime containing a sexual element, at the discretion of the sentencing judge."

This recommendation was implemented in the Sexual Offences Act 2003.

The Sexual Offences Act 2003 (the 2003 Act)

[5] Schedule 3 to the Act sets out the list of offences conviction of which results in notification for the periods specified in the Table set out in section 82. The Schedule lists certain specific offences under the law of Scotland (paras 36-59). New offences have been added by amendment from time to time. I shall refer to these specified offences collectively as the "specific list." Conviction of an offence on the specific list automatically leads to notification, subject to minor exceptions such as public indecency (para 41A).

[6] In addition to the specific list, paragraph 60 implements the proposal of the Cosgrove Report that I have quoted by providing for notification on conviction of an otherwise non-scheduled offence in the following circumstances:

"... if the court, in imposing sentence or otherwise disposing of the case, determines for the purposes of this paragraph that there was a significant sexual aspect to the offender's behaviour in committing the offence."

The Sexual Offences Act 2003 (Commencement) (Scotland) Order 2004 (SSI No 138)

[7] The 2004 Order brought into force on 1 May 2004 those provisions of the 2003 Act that extend to Scotland.

The remedial orders of 2010 and 2011

[8] On 21 April 2010 in R (F) v Secretary of State for the Home Department, ([2011] 1 AC 331) the Supreme Court made a declaration under section 4 of the Human Rights Act 1998 that "the indefinite notification requirements in section 82(1) of the Sexual Offences Act 2003 are incompatible with article 8 of the European Convention on Human Rights because they do not contain any mechanism for the review of the justification for continuing the requirements in individual cases."

[9] To remove this incompatibility, the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010 (SSI No 370) amended the 2003 Act with effect from 25 October 2010, by inserting sections 88A to 88I into the 2003 Act. The provisions of that order were revoked and re-enacted with amendments by the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011 (SSI No 45).

[10] The new sections provide a mechanism for the periodic review of the justification for continuing the notification requirements where the offender is subject to the notification requirements for an indefinite period. No provision exists for such review where, as in the present cases, the offender is subject to the notification requirements for a finite period.

The convictions and the disposals

(1) Conviction on indictment and the disposal

[11] On 28 January 2010 at Aberdeen sheriff court the appellant pled guilty on indictment to the following charges:

"(1) on 3 November 2008 at Kingsway, Cruikshank Crescent, Hillocks Way, Netherhills Avenue, all in Aberdeen and elsewhere in Aberdeen, you ... did conduct yourself in a disorderly manner, repeatedly follow ... [complainer A] aged 14 years of age, ..., an unaccompanied female, repeatedly stare at her and nod at her, place her in a state of fear and alarm and commit a breach of the peace;

(2) between 1 January 2009 and 31 January 2009 both dates inclusive at Victoria Street and Riverview Drive, both in Dyce, Aberdeen, you ... did conduct yourself in a disorderly manner, repeatedly follow unaccompanied females in your motor car, repeatedly stare at them, repeatedly gesture to the lieges to approach you whilst in your motor car, place them in a state of fear and alarm and commit a breach of the peace;

(3) between 1 January 2009 and 11 March 2009 both dates inclusive at Netherview Avenue and Victoria Street, both in Dyce, Aberdeen and elsewhere in Aberdeen, you ... did conduct yourself in a disorderly manner, repeatedly walk past ... [complainer D], aged 15 years of age, ..., an unaccompanied female, follow her in a motor vehicle, repeatedly stare at her and nod at her, place her in a state of fear and alarm and commit a breach of the peace;

(4) between 5 March 2009 and 26 March 2009 both dates inclusive at Netherview Avenue and Victoria Street, both in Dyce, Aberdeen and elsewhere in Aberdeen, you ... did conduct yourself in a disorderly manner, repeatedly follow unaccompanied females in your motor car, repeatedly stare at them, place them in a state of fear and alarm and commit a breach of the peace

(5) you ... being an accused person and having been granted bail on 23 March 2009 at Aberdeen Sheriff Court in terms of the Criminal Procedure (Scotland) Act 1995 and being subject to the condition inter alia that you do not approach or attempt to approach or contact ... [complainer A] did on 26 April at George Street Aberdeen fail without reasonable excuse to comply with said condition in respect that you did approach and follow said ... [complainer A]

CONTRARY to the Criminal Procedure (Scotland) Act 1995, Section 27(1)(b);

(6) on various occasions between 27 April 2009 and 1 May 2009 both dates inclusive at Asda superstore, Riverside Drive, Bankhead Avenue, Victoria Street and Stoneywood Road all in Dyce, you ... did conduct yourself in a disorderly manner, repeatedly drive past unaccompanied females in your motor car, repeatedly follow them in your motor car, repeatedly stare at them, place them in a state of fear and alarm and commit a breach of the peace ...

(7) on 1 May 2009 at Netherview Avenue, Dyce, Aberdeen you ... did conduct yourself in a disorderly manner, follow an unaccompanied female in your motor car, repeatedly stare at her, place her in a state of fear and alarm and commit a breach of the peace ...

For each of these charges a bail aggravation was libelled.

The circumstances

[12] All of the charges involved girls aged between 14 and 16, none of whom knew the appellant.

[13] On the date libelled in charge (1) complainer A was delivering newspapers. The appellant drove slowly past and looked at her. Then he drove slowly in front of her as she made her deliveries. He stared and nodded at her. The witness sent a text message to her mother telling her that she was scared because she thought that she was being followed. She asked her mother to meet her. When her mother arrived the appellant drove off. The complainer was visibly shaken.

[14] On a date within the period libelled in charge (2) complainers B and C were walking in the street when the appellant drove past. He repeatedly waved and gestured at them to come over. He stopped his car further down the road and then drove after them. Both girls were frightened and ran into the grounds of a nearby school.

[15] On a date within the period libelled in charge (3) complainer D was standing alone at a bus stop when the appellant approached her. He nodded and stared at her as he passed. This happened on four further occasions. Later, when he was in his car the appellant stared at her, gestured that she should come over and nodded as he drove past. She was by now afraid of the appellant and was unsure of his intentions. She told her mother. The police were contacted. Later, she was accompanied to the bus stop by her grandfather, who saw the appellant's car and noted the registration number.

[16] The appellant was interviewed by police in relation to charges (1) and (3). He denied all knowledge of the incidents. After his appearance in court he was released on bail.

[17] On a date within the period libelled in charge (4) complainer E was standing at a bus stop when the appellant repeatedly drove past and stared at her. He stopped his car just past the bus stop and looked at her for about 5 minutes. On the evening of 16 March the complainer in this charge was with her friend complainer C when the appellant drove past and stared at them in his mirror.

[18] On the date libelled in charge (5) complainer A was standing at a bus stop when the appellant drove past and nodded at her. He then drove past in the opposite direction before stopping about ten metres away.

[19] On the date libelled in charge (6) the appellant drove slowly past complainers F and C and stared at them. On several occasions throughout the following day he drove slowly past complainer F and stared at her. On two occasions on the following day he drove past her and stared at her. He then stood outside his car and waved to her to come over.

[20] On the date libelled in charge (7) complainer C was walking to school when the appellant drove past and stared at her. She was upset and went to the police.

The sheriff's decision

[21] The sheriff was satisfied that there had been a significant sexual aspect to the appellant's conduct. These were his reasons:

"It appears from the Crown narrative that there were at least 28 instances of the appellant staring at a young female and numerous other instances when he either waved, gestured or nodded at the complainers. In some instances the gestures were of a beckoning nature, in other words, of a nature intended to invite closer contact.

While I readily accepted that the appellant did no more than that, it was the fact that he had repeatedly engaged in this behaviour over a lengthy period of time and that all offences involve unaccompanied young women, that persuaded me that there was a significant sexual aspect to his behaviour. The suggestion that there was any element of coincidence involved because these offences took place on streets along which the appellant regularly travelled, seemed to me to be stretching the imagination somewhat. While there was no direct contact between the appellant and the complainers nonetheless it was clear that his behaviour gave rise to alarm on their part. I also had to take into account that in relation to charge 5 in particular the appellant, despite being subject to a special bail condition that he did not approach or contact the complainer in that charge, did so. There was an element of persistence on the part of the appellant.

Accordingly, I found that there was a significant sexual aspect to the behaviour complained of as the behaviour was not only sexual in its nature but the behaviour was also persistent and the fact that young unaccompanied females were targeted by the appellant made the behaviour significant. There did not require, in my view, to be actual contact between the appellant and the complainers and in the absence of an innocent explanation which the appellant could readily and easily have given, sexualised that behaviour [sic]."

[22] The sheriff imposed a cumulo sentence of twelve months imprisonment, one month of which was for the bail aggravations. In terms of paragraph 60 of Schedule 3 to the 2003 Act (supra), he determined that there was a significant sexual aspect to the appellant's behaviour. By reason of that determination the appellant became subject to the notification requirements of the Act for a period of ten years (2003 Act, s 82, supra).

(2) The conviction on complaint and the disposal

[23] On 13 April 2010 at Aberdeen sheriff court the appellant was convicted on complaint of the following charges:

"(1) on 8th January 2010 at ... [a ground floor flat] you ... did conduct yourself in a disorderly manner repeatedly ring the buzzer for the flat, loiter outside the window, throw snowballs at the window, repeatedly stare in through [a] window to the fear and alarm of the lieges and commit a breach of the peace;

(2) you ... being an accused person and having been granted bail on 27 May 2009 at Aberdeen Sheriff Court in terms of the Criminal Procedure (Scotland) Act 1995 and being subject to the condition inter alia that you remain with[in] your home address, ... between 7pm and 7am daily did on 8th January 2010 at [street of locus in charge 1], Aberdeen fail without reasonable excuse to comply with said condition in respect that you were outwith your home address between 7pm and 7am;

CONTRARY to the Criminal Procedure (Scotland) Act 27(1)(b)

(3) on 15th January 2010 at [locus in charge (1)], Aberdeen you ... did conduct yourself in a disorderly manner, loiter outside the window, repeatedly stare in through a window to the fear and alarm of the lieges and commit a breach of the peace;

(4) on 19th January 2010 at [locus in charge (1)], Aberdeen you ... did conduct yourself in a disorderly manner loiter outside the window, repeatedly stare through a window, ring a flat buzzer, utter sexual remarks, entice the lieges to come to the window, press a mobile phone against a window all to the fear and alarm of the lieges and commit a breach of the peace;

(5) you ... being an accused person and having been granted bail on 27 May 2009 at Aberdeen Sheriff Court in terms of the Criminal Procedure (Scotland) Act 1995 and being subject to the condition inter alia that you remain with[in] your home address, ... Aberdeen between 7pm and 7am daily did on 19th January 2010 at [street of locus in charge 1], Aberdeen fail without reasonable excuse to comply with said condition in respect that you were outwith your home address between 7pm and 7am;

(6) on 31st January 2010 at [street in Aberdeen] you ... did conduct yourself in a disorderly manner watch the lieges, follow the lieges and run after the lieges to their fear and alarm and commit a breach of the peace ... "

A bail aggravation was libelled for each of these charges; and in respect of charges (2) and (5) it was libelled notwithstanding this court's decision in Robertson v Donaldson (2007 JC 175). No point was taken about this.

The circumstances
[24] The locus of charges (1), (3) and (4) was a ground floor flat occupied by female students one of whom was the complainer. On 8 January 2010 she realised that snowballs were being thrown at the windows. She saw a man passing the kitchen window. Then the buzzer rang. She answered and a male voice said "You're gorgeous." She made no reply and hung up. Snowballs again began to hit the windows and the buzzer continued to sound. She ignored this for a while but then spoke to her flatmate. They saw the man outside.

[25] On 15 January 2010 this complainer was watching television when she noticed a face at the window looking in through gaps in the blinds. She telephoned her flatmate who was on her way home. It was dark outside. This behaviour persisted for some time.

[26] On 19 January 2010 the complainer saw a man's face at the kitchen window. He appeared to be trying to write a message on his mobile phone, which he held up to the window. He was standing close to the window and staring in. The buzzer sounded. When she answered a male caller said "You've a nice pair of tits," then hung up. The appellant was later identified as the man responsible.

[27] The sheriff does not discuss charge (6) in his report. I shall assume that the evidence was in line with the Crown's summary. The complainers were sisters aged 12 and 15 years and their friend, a girl aged 14 years. On 31 January 2010 they were playing with sledges. They noticed the appellant standing near to them and watching them. They went back to the sisters' home. The appellant followed. The girls became increasingly alarmed. They started running. The appellant ran after them. The sisters' mother heard their screams and shouts. She came outside to find out what had happened.

The sheriff's decision

[28] The sheriff imposed a cumulo sentence of nine months' imprisonment, three months of which were for the bail aggravation. He determined that the breach of the peace charges had a significant sexual aspect (2003 Act, Sched 3, para 60, supra) and directed that the appellant should be subject to the notification requirements of the 2003 Act for a period of ten years. In his report he gives the following reasons:

"In finding that there was a significant sexual aspect to charges 1, 3, and 4, I took account of the whole circumstances in which these charges occurred. Charge 1 occurred on 8th January 2010, charge 3 on 15th January 2010 and charge 4 on 19th January 2010. All three charges occurred at the same locus, ... which is a ground floor flat occupied by female students. All incidents occurred when it was dark and all had similarities. It appeared clear to me that the accused had followed a course of conduct in which he deliberately targeted young adult females. His general behaviour was, in my view, seeking the attention of these females, that view being reinforced by the evidence from the witnesses regarding his remarks, namely 'You're gorgeous' and 'You've a nice pair of tits'. While the first remark might, in the absence of any other evidence, be viewed as simply a compliment by a male to a female albeit a complete stranger viewed in the context of the second remark it clearly had sexual connotations. His behaviour appeared to me to indicate a prurient interest in looking at young adult females and the manner of him doing so was inappropriate in all the circumstances. The comments made by him were, given that he had never met nor been introduced to the person in question, inappropriate. One has to ask oneself what it was that the accused hoped to achieve."

The sheriff does not discuss his order for notification in respect of charge (6).

The appellant

[29] The appellant was born in 1988. He had no previous convictions.

Grounds of appeal

Conviction on indictment

[30] The appellant has lodged a bill of advocation and a devolution minute in which he contends that there has been a breach of his right to a fair hearing under article 6 of the Convention in that the indictment gave no notice that he might be subject to the requirements of the 2003 Act; that it could not be said, on a proper construction of the 2003 Act, that the behaviour had a significant sexual aspect; that standing the Supreme Court's decision in R (F) v Secretary of State for Justice (supra), the relevant provisions of the 2003 Act are not law as they represent a disproportionate interference with rights under article 8 of the Convention; that the Sexual Offences Act 2003 (Commencement) (Scotland) Order 2004 (2004 No 138) was ultra vires, and that sheriff's order was therefore incompetent; and that the actions of the Lord Advocate in prosecuting the appellant and moving for sentence in these circumstances were ultra vires by reason of section 57(2) of the Scotland Act 1998.

Conviction on complaint

[31] The appellant contends that the complaint served upon him gave no notice that he might be subject to the requirements of the 2003 Act and that accordingly there has been a breach of his right to a fair hearing under article 6; and that the sheriff erred in holding that the appellant's behaviour had a significant sexual aspect.

Submissions for the appellant

[32] Senior counsel for the appellant submitted that the libel did not clearly indicate a significant sexual aspect and did not give fair notice that the 2003 Act might apply. The appellant was entitled to be given such notice, in language that he could understand, before he tendered a plea. If the Crown contended that there was a significant sexual aspect, then that should be libelled. Thereafter it would be for the sentencing judge to decide whether to make an order. The correct approach would be to allow evidence and submissions on the point. The rationale of the notification requirements was to prevent further offending and to manage risk. The requirements were broadly proportionate but should not be applied to offenders unless they posed a risk. The key word was "significant." The danger of a rigid approach was illustrated by section 82. An offender who was put on probation was subject to the notification requirements only for the duration of the probation order, whereas if he was admonished he would be subject to them for five years. While the appellant's conduct was alarming, it did not merit a notification period of ten years. It had not been shown that he posed a demonstrable risk. The logic of R (F) v Secretary of State for Justice (supra) applied equally well where the notification period was finite. An offender should have an opportunity to demonstrate that he no longer posed a risk, in which case he should no longer be subject to the notification requirements. It was anomalous that an offender who was subject to the requirements for an indefinite period could seek review but the appellant could not, when ex hypothesi he posed less risk.

Submissions for the Crown

[33] The advocate depute submitted that the appellant had been given sufficient notice to enable a defence to be prepared (Mattocia v Italy 36 EHRR 82). The information given to an accused and his agents was sufficient notice of any sexual element. They were presumed to know the terms of the 2003 Act. They had the opportunity to address the sheriff on whether he should make a determination, which cured any lack of notice. The matters libelled, when taken together, gave sufficient notice. The words "significant sexual aspect" should bear their ordinary meaning in the context of the aims of the legislation, which were public protection and the monitoring of sex offenders. Whether there was a significant sexual aspect was for the sentencer to determine according to the circumstances of the case. The sheriff had been entitled to conclude that there was such an aspect here. Parliament had been entitled to adopt a broad brush approach. It was proportionate that offenders who posed a minor risk were included, to ensure that any escalation in offending behaviour was detected. A fixed period of notification without review was proportionate. It did not follow from R (F) v Secretary of State for Justice (supra) that a review was required. The Supreme Court had stated that a high threshold could be imposed, which could entail that a review was not required where the relevant period was shorter. Statistics showed that the greatest risk was posed within the first five years of release, so the need for public protection was greater. To introduce a review procedure would have serious resource implications.

Conclusions

The meaning and effect of registration

[34] It will be apparent from the legislation that I have quoted that registration as a sex offender is not a sentence. The purpose of registration is not punitive. It is protective. It enables the police to keep tabs on a sex offender who is, or who may be, a continuing danger to others, and particularly to women and young people.

[35] However, although registration does not constitute a sentence, it is nonetheless a grave stigma and one which, designedly, places onerous restrictions and requirements on the registered offender's life. In particular, the offender has the public status of sex offender. He is under a continuing obligation throughout the registration period to inform the police of his whereabouts and to notify them whenever he changes his address.

Scheme of the legislation

[36] The registration periods are not particularly sensitive to the length of sentence imposed. The scheme of the legislation is to provide for specified periods that apply to broad bands of sentences.

[37] The Schedule to the 2003 Act places convictions in two categories, namely convictions covered by the specific list and convictions covered by paragraph 60 (supra). The effect of the specific list is that, subject to certain minor exceptions, the commission of a listed offence, whatever the circumstances and whatever the degree of gravity, results automatically in registration. Paragraph 60 on the other hand can apply to any offence not so listed. Registration in this case does not follow automatically from conviction. It is imposed only where the sentencer concludes that there was a "significant sexual aspect" in the offender's "behaviour." It will be apparent from this that the significant sexual aspect is not necessarily to be found exclusively in the acts that are libelled. It could be found from a consideration of the whole circumstances surrounding the offence.

Requirements of fair notice
The problem

[38] These appeals raise a difficult question in relation to the application of paragraph 60. When charged with a specific list offence the accused will know from the libel itself that he will be subject to registration if convicted. In a case under paragraph 60, however, it may not be apparent to the accused that the question of there being a significant sexual aspect may arise. The problem is typically encountered in the following ways. Where it is alleged that the accused has touched the complainer inappropriately, the Crown may charge that species facti as indecent assault, or since 1 December 2010 as a sexual assault (Sexual Offences (Scotland) Act 2009, s 3), or as a simple assault or as a breach of the peace. Where it is alleged that the accused has exposed himself in public, the Crown may charge that species facti as a statutory offence under by-laws; or as public indecency (Webster v Dominick 2005 JC 65) or, since 1 December 2010, as sexual exposure (Sexual Offences (Scotland) Act 2009, s 8); or as a breach of the peace.

The Crown's summary of evidence

[39] In summary procedure it is the practice of the Crown to serve upon the accused a statement summarising the Crown's information as to the facts, the "summary of evidence." The advocate depute argued therefore that in summary procedure, where most instances of this problem will arise, the accused will thereby receive fair notice that paragraph 60 may apply.

[40] I do not accept that in such cases the summary of evidence constitutes fair notice. The summary is not a complete safeguard. Experience shows that often the evidence puts a different complexion on the case from that which is shown in the Crown summary.

The terms of the libel

[41] In my opinion, if the Crown chooses to libel an offence that is not on the specific list, for example by libelling breach of the peace in either of the instances that I have canvassed, and libels it without further narrative, the accused is entitled to infer that the Crown makes no suggestion that there is a significant sexual aspect in the accused's behaviour. If however in libelling an offence that is not on the specific list the Crown proposes, in the event of conviction, to contend that there is a significant sexual aspect, fair notice requires, in my opinion, that that should be narrated in the libel itself together with the alleged facts and circumstances from which that aspect is to be inferred.

[42] This is analogous to established practice in cases where the particular circumstances of the offence are relevant to the court's powers on disposal. It has been held, for example, that a charge should libel that the complainer was below 18 years of age wherever that fact determines whether the accused is to be subject to the notification requirements (MacPherson v Gilchrist 2000 JC 463, Lord Prosser at para [15]).

[43] Where the offence libelled is a specific list offence, it might be thought that the matter of registration was open and shut, registration being an automatic consequence of the conviction. However, the discussion in this group of cases, and particularly in the case of Thompson v PF Glasgow
[2012 HCJAC 27] has raised a particular difficulty in the case of indecent assault.

[44] In Grainger v HM Adv (2005 SCCR 175) I observed that indecent assault is not an independent sexual offence, that it need not be libelled as nomen iuris and that the offence was essentially an assault aggravated by indecency in the manner of its commission (para [17]). I concluded that where the question of certification of a sexual offence arose in such a case, the trial judge must take the conviction in the terms in which it had been returned by the jury and decide whether, in whole or in part, it disclosed an offence that had the quality of indecency that made it a sexual offence (para [18]); and, if he was in doubt on the point, invite submissions from counsel (para [19]). That was a case under the previous legislation and in that case the question of fair notice under article 6 was not raised.

[45] We now have to consider that question again, bearing in mind that although indecent assault need not be libelled as a nomen iuris, the specific list in the 2003 Act includes "indecent assault" (Sched 3, para 40). Taking these considerations into account, I have come to the view that where the Crown charges assault and, in the event of conviction, will contend that the assault was an indecent assault, fair notice now requires that the libel should specifically allege indecent assault eo nomine. I shall discuss this further in the appeal of Thompson v PF Glasgow (supra).

Facts emerging at the trial or thereafter

[46] There may be cases in which the accused is convicted of an offence not on the specific list where the question of there being a significant sexual aspect emerges only at the trial itself or where the sentencer, having received reports, takes the view that the reports shed a new light on the accused's behaviour. In these cases, in my opinion, fairness requires that the sentencer, if minded to consider applying paragraph 60, should give the defence a proper opportunity to make submissions on the point and, if need be, lead evidence in rebuttal. In my view the sentencer should continue the case to a later date for that purpose.

[47] I am confirmed in this view by the consideration that if the possibility of there being a significant sexual aspect arises only after a finding of guilt, the defence may well feel that it would have conducted its case in a different way if this had been known.

May the sentencer raise the question of paragraph 60 ex proprio motu?

[48] I do not rule out the possibility that the sentencer would be entitled to raise the question of paragraph 60 ex proprio motu. However, in such a case, which I should think would be rare, the sentencer must give the defence the fullest opportunity to make submissions and lead evidence on the question.

The basis of a judgment on paragraph 60

The duty of the sentencer

[49] On the assumption that the Crown has given fair notice of its intention to rely on paragraph 60, the sentencer must decide the matter on the facts. If the accused is convicted after trial, the decision will rest on the terms of the conviction and such surrounding facts as are clearly proved. If the accused has pled guilty, the decision will rest on the terms of the conviction and on such parts of the Crown narrative as are agreed. If there is a dispute on the material issue of fact in such circumstances, the sentencer may have to hear evidence to resolve it.

[50] It is the duty of the sentencer to decide the matter for himself using these sources of information. He ought not in my opinion to have regard to any expression of view on this question that may be contained in a social enquiry report.

[51] Furthermore, I do not consider it legitimate for the sentencer to base his judgment on the accused's previous or subsequent convictions. Such convictions do not fall within the category of the accused's "behaviour" in the context of paragraph 60. The sentencer must make a judgment only on the accused's behaviour on the occasion libelled.

[52] In my opinion it would be futile to attempt to define the word "significant" as it is used in paragraph 60. That is a question best left to the judgment of the sentencer. Since the purpose of registration is to protect the public against a perceived danger, the question whether a sexual aspect of the accused's behaviour was significant should be assessed in that light. One way to approach that is to consider whether the sexual aspect is important enough to merit attention as indicating an underlying sexual disorder or deviance from which society is entitled to be protected (Wylie v M 2009 SLT (Sh Ct) 18, Sheriff Pyle at [13]). In this difficult exercise, in my view, sentencers should consider the accused's behaviour in the context of the purpose and the effects of registration, keep a sense of proportion and use their commonsense.

Convention-related issues

[53] In my opinion the legislation does not offend against the Convention. Its provisions are within the scope of Parliament's margin of appreciation. The legislation is undoubtedly motivated by a legitimate aim, namely the protection of the public. In my opinion the means are reasonably related to that aim.

[54] The registration periods are provided in a simple scheme in which the various periods come into effect in a series of precipices. The scheme has the effect that, for example, an offender who is sentenced to six months imprisonment will be registered for seven years whereas an offender who is sentenced to seven months imprisonment will be registered for ten years. It also has the strange consequence that if the accused is put on probation, the registration period is the period of probation; whereas if he is admonished, the registration period is five years.

[55] There will inevitably be hard cases. However, I consider that that is not in itself a reason for us to hold that the legislation is not Convention compliant (Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, Lord Nicholls of Birkenhead at para [74]; Gallagher, Re an Application by for Judicial Review [2003] NIQB 26, Kerr J at para [23]; Forbes v Secretary of State for the Home Department [2006] 1 WLR 3075, at paras [16]-[17]). The legislation is a proportionate response to a serious social problem.

[56] I am further of the view that the ratio of R (F) v Secretary of State for the Home Department (supra) does not extend to the imposition of fixed periods of registration. In that case the Supreme Court held that for those who were made subject to life-long notification requirements, a right of review could be subject to a "high threshold" regarding inter alia the date at which review could first be sought (Lord Phillips of Worth Matravers PSC at paras [39], [57]). It is consistent with that approach that where there is a definite period of registration that automatically comes to an end, a right of review is unnecessary.

[57] On the view that I have taken on the Convention questions, the questions of vires relating to the 2004 Order and to the conduct of the Lord Advocate in the context of section 57(2) of the Scotland Act 1998 do not arise.

Cumulo sentences

[58] Where the accused has been convicted of two or more charges, not all of which bring Schedule 3 into play, the sentencer ought not to pass a cumulo sentence. The part of a sentence attributable to a bail aggravation should be left out of account in this part of the exercise.

[59] In this case, the first sift judge who considered the summary appeal noted that the imposition of a cumulo sentence of nine months, including three months for a bail aggravation, raised a real question as what the appropriate notification period should be. However, since a ten years notification period was triggered in any event by the sentence on the indicted charges, the issue is academic in this case.

Decision in these appeals and disposal

[60] In both of these cases, in my opinion, the sheriff was amply justified in concluding that the behaviour of the accused exemplified a significant sexual aspect. I propose to your Lordships that we should refuse both appeals.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Bracadale Lord Osborne	[2012] HCJAC 28 Appeal No: XC317/10 XJ832/10 OPINION OF LORD BRACADALE (1) In the Appeal by IAN HAY Appellant; against HER MAJESTY'S ADVOCATE Respondent: (2) In the Appeal by Stated Case by IAN HAY Appellant; against PF ABERDEEN Respondent: _______

For the appellant: Brown QC, M Mackenzie; Burn & McGregor, Aberdeen

For the Crown: Stewart, QC AD, McGuire; Crown Agent

15 February 2012

[61] For the reasons given by your Lordship in the chair, I agree that the disposal of this appeal should be as proposed by your Lordship.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Bracadale Lord Osborne	[2012] HCJAC 28 Appeal No: XC317/10 XJ832/10 OPINION OF LORD OSBORNE (1) In the Appeal by IAN HAY Appellant; against HER MAJESTY'S ADVOCATE Respondent: (2) In the Appeal by Stated Case by IAN HAY Appellant; against PF ABERDEEN Respondent: _______

For the appellant: Brown QC, M Mackenzie; Burn & McGregor, Aberdeen

For the Crown: Stewart, QC AD, McGuire; Crown Agent

15 February 2012

[62] I agree with the Opinion of your Lordship in the Chair and have nothing further to add.