Appellant: McConnachie, QC, Green; Dunipace Brown, Cumbernauld

Respondent: Edwards, AD; the Crown Agent

5 November 2013

[1] On 4 February 2013, after an examination of facts under section 55 of the Criminal Procedure (Scotland) Act 1995 at Airdrie Sheriff Court, the sheriff found that the appellant had committed acts amounting to lewd and libidinous practices. On 2 May 2013, the sheriff imposed a 2 year Supervision and Treatment Order, under and in terms of section 57(2)(d) of the 1995 Act. The effect of the appellant having been found to have committed the acts was that he automatically became subject to the notification requirements of the Sexual Offences Act 2003 (s 80) for a period of 5 years (s 82), although the sheriff thought at the time that the period might only be one of 2 years. In terms of section 92(2) of the 2003 Act, the sheriff stated, in open court, that the offence involved was one listed in Schedule 3 to the 2003 Act and he certified those facts (ie that the appellant had been told that the offence was so scheduled). The only effect of these acts of the court is that the certification becomes sufficient evidence of its content. Whether the court had or had not made the statement and carried out the certification had no effect on the obligation on the appellant to comply with the statutory notification requirements.

[2] The appellant lodged a Note of Appeal under section 62 of the 1995 Act. This provision permits an appeal against an "order made under section 57(2)" including, therefore, the imposition of the Supervision and Treatment Order. However, the appellant does not contend that the Order was inappropriate or excessive. Rather, he seeks to "appeal the disposal, in particular the notification requirements imposed upon him by virtue of the Sexual Offences Act 2003 (section 80)". Although its contents do not feature in the grounds of appeal, the appellant has also lodged a Compatibility Minute (see Act of Adjournal (Criminal Procedure Rules) 1996, Chapter 40) which states that the point being raised is that:

"an Act of the Scottish Parliament, that is section 80(1)(c) of the Sexual Offences Act 2003 is incompatible with the European Convention on Human Rights ...".

[3] The reason for this is expanded slightly by saying that it breaches the appellant's rights under Articles 6 and 8, but the court understands that the argument is to be restricted, in terms of the written argument lodged, to a breach of Article 8 (right to respect for private and family life). The argument to be presented was also said to be limited to the applicability of the notification requirements in the appellant's particular case, rather than a contention that the notification requirements, as a generality, are incompatible (cf Hay v HM Advocate 2012 SCCR 281). The submission would be that, because of the inability of the appellant to comply with the notification requirements, their imposition upon him infringed his Article 8 rights.

[4] The court does not consider that a compatibility issue "arises" in these proceedings (1995 Act, s 288ZA(2)). The appellant has been made the subject of a Supervision and Treatment Order. He is entitled to appeal against that Order and has done so. However, he does not complain that the Order was either inappropriate, or excessive, or that there is any other basis upon which the court could quash the Order. That is essentially an end to the appeal proceedings under section 62 as far as this court is concerned. There is no remedy available to the appellant in this process which can affect the applicability of the statutory provisions. There is no act of a public authority "arising" in these proceedings, which is rendered unlawful in terms of section 6(1) of the Human Rights Act 1998 and, of course, no Act of the Scottish Parliament involved, given that the 2003 Act is a United Kingdom statute.

[5] The appellant seeks to challenge the compatibility of the notification requirements under the 2003 Act in his particular case. If that is so, then he will have to seek a declarator of incompatibility under section 4 of the 1998 Act, in proper form. Since it is his Article 8 rights which he is alleging to be infringed, the obvious course of action is a petition for judicial review, which would enable the issue to be looked at in the context of proper pleadings which set out the contentions of all parties properly convened (see, generally, Nisbet v Butt 2012 SCCR 649 at para [19]).

[6] The appeal is accordingly refused.