Appellant: C M Mitchell, Lugton; Beaumont & Co

Respondent: A F Stewart, QC, AD; the Crown Agent

4 December 2012

[1] On 10 October 2011, at Edinburgh Sheriff Court, the appellant pled guilty to charges which libelled that on 12 February 2011 at an address in Caledonian Crescent, Edinburgh, he:

"(1) ... did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that [he] did threaten violence to the occupants there; contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010; and

(2) ... did intentionally direct a sexual verbal communication at [CJ] and [KM] in that [he] did threaten to rape them; contrary to section 7(1) of the Sexual Offences (Scotland) Act 2009."

Upon conviction, the sheriff advised the appellant that the offence in charge (2) was a sexual offence to which part 2 of the Sexual Offences Act 2003 applied. That statement was the subject of a certificate, issued by the clerk of court, in terms of section 92(2) of the 2003 Act. In practical terms, the sheriff would have told the appellant of the notification requirements and the clerk would have provided the appellant with a written notice detailing the requirements. However, the legal basis for subjecting the appellant to the notification regime stems not from any statement by the court, but from the automatic effect of section 80 of the 2003 Act, which provides that a person becomes subject to that regime as soon as he is convicted of an offence listed in Schedule 3. Paragraph 59J of that schedule lists a contravention of section 7(1) of the 2009 Act.

[2] After sundry procedure, on 21 February 2012 the sheriff deferred sentence on the appellant. At that diet the appellant's agent raised, for the first time, the question of whether the notification requirements under the 2003 Act were compliant with the appellant's right to respect for his private life under Article 8 of the European Convention. It should be noted that the appellant had not yet been sentenced. The extent to which any notification requirements will apply to him, and in particular the time period of these requirements, was, and remains, uncertain.

[3] The appellant has presented a Bill of Suspension. Although it is not clear from the prayer of the Bill exactly what is to be suspended, the pleas-in-law state that the appellant seeks suspension of "the order to place the [appellant] on the Sex Offenders' Register". There are four bases for seeking suspension outlined in the plea, one of which relates to a potential disproportionate interference with the appellant's Article 8 right. The others are that: (i) despite the terms of the schedule, the offence was not a sexual one; (ii) the introduction of paragraph 59J by the Sexual Offences Act 2009 was ultra vires the Scottish Ministers; and (iii) the Lord Advocate was acting ultra vires in prosecuting the appellant in the first place. However, it is of note that the appellant has not sought to challenge either his conviction or the sentencing process.

[4] The appellant's contention is that, although it was accepted that the effect of the conviction was that the appellant was automatically made subject to the notification requirements, these requirements did interfere disproportionately with the appellant's Article 8 right, and that this court could grant a remedy in that regard, possibly in the form of a declarator that the provisions for notification in the 2003 Act were in some way incompatible with the Convention (cf Hay v HM Advocate 2012 SCCR 281; R(F) v Secretary of State for the Home Department [2011] 1 AC 331) and, in respect of those parts in force as a result of the actions of the Scottish Parliament, not law (see eg Cameron v Cottam 2012 SCCR 271). The Crown contended that, since there was no order which could be suspended, the Bill must be regarded as seeking an incompetent remedy. There had been no actions on the part of the prosecutor, or indeed the sheriff, in relation to the imposition of the notification requirements (see Ibbotson v United Kingdom [1998] 27 EHRR CD 332).

[5] The short point is that the sheriff made no order in relation to the imposition of the notification requirements. He merely stated that, in accordance with the law, the requirements applied to the appellant. The purpose of that statement is evidential only. Once the clerk has issued a certificate confirming the statement, that is proof that the appellant has been convicted of an offence listed in Schedule 3. Accordingly, the Bill of Suspension is incompetent as it challenges an order which does not exist. Since there is no order of the nature specified in the Bill, which is capable of suspension, the court cannot grant a remedy in this process in favour of the appellant and, in particular, one to which a declarator of the type sought, had one been prayed for, might have been attached. If it is ultimately the appellant's contention that the notification requirements of the 2003 Act, which is a United Kingdom statute, are in some way incompatible with Article 8 of the Convention, then his obvious remedy is a petition under section 7 of the Human Rights Act 1998 challenging that compatibility or one for judicial review of any act of the Scottish Parliament or Ministers which the appellant considers equally incompatible and therefore "not law". In these circumstances the court will refuse to pass the Bill.

DL