Appellant: Dewar, QC, M C MacKenzie; Drummond Miller (for George Mathers & Co., Aberdeen)

Respondent: Niven Smith, AD; Crown Agent

11 December 2012

Introduction

[1] The appellant was charged with a breach of a Sexual Offences Prevention Order (SOPO). He had been seen in a botanical glass-house in the Winter Gardens in Duthie Park, Aberdeen, near a pond which featured an ornamental frog which rose and sank mechanically, at regular intervals. That area was known as "the McPuddock area".

[2] The charge (as amended) was in the following terms:

"(2) You ... being subject to a Sexual Offences Prevention Order granted at Aberdeen Sheriff Court on 25 May 2009 in terms of the Sexual Offences Act 2003 prohibiting you from inter alia, entering or loitering in or around an identifiable area of a public park while it is being used for children's activities, did on two occasions between 1 September 2011 and 26 September 2011, both dates inclusive, at Duthie Park, Polmuir Road, Aberdeen without reasonable excuse, breach the terms of said Order in that you did enter and loiter in an identifiable area of a public park whilst they were [sic] being used for children's activities.

Contrary to the Sexual Offences Act 2003, section 113(1)(a)

You ... did commit this offence while on bail, having been granted bail on 25 January 2011 at the High Court of Justiciary."

[3] During the trial, the procurator fiscal and the defence agent entered into a joint minute, paragraph 3 of which narrated the terms of the SOPO as follows:

"(3) on 25 May 2009 on the application of Grampian Police, a Sexual Offences Prevention Order was granted in respect of the accused at Aberdeen Sheriff Court. The Order prohibited the accused Philip Allan Main from inter alia ...(ii) entering or loitering in or around ... [any] identifiable area of a public park while the said park is being used for children's activities."

[4] In his charge, the sheriff gave the jury the following direction at pages 15 to 16:

" ... In this case the Crown has to prove that there was a Sexual Offences Prevention Order and its particular conditions, and secondly, that there was a deliberate intentional breach or breaches and that these were without reasonable excuse. These are all matters that the Crown has to prove. So that's, firstly, that there was an order and its conditions, and secondly, that there was a deliberate intentional breach or breaches and that these were without reasonable excuse.

Now the first part, whether there was such an order and its conditions, is easy in this case, because it's agreed that at the relevant time the Sexual Offences Prevention Order was in place, and the conditions in that order are agreed in the Joint Minute which you have ..."

[5] The appellant was convicted. He appealed against conviction.

[6] At the appeal hearing on 11 December 2012, it appeared that no copy of the joint minute was contained in the papers. Neither the bench, the clerk, the advocate depute, nor defence counsel, had a copy. A short adjournment was allowed to enable copies of the joint minute to be provided.

[7] Once the joint minute was available, a preliminary issue arose concerning the precise terms of the SOPO. It was noted that, although the terms of the order were accurately reflected in Charge 2 of the indictment, the terms were not accurately recorded in the joint minute. Charge 2 referred to entering or loitering in or around an identifiable area of a public park (for example, the McPuddock area) while "it" (i.e. in this case, the McPuddock area) was being used for children's activities. However paragraph 3 of the joint minute referred to entering or loitering in or around any identifiable area of a public park while the said park (i.e. Duthie Park) was being used for children's activities. In other words, the joint minute recorded an order which had not in fact been imposed by the court, the terms of which were (as the advocate depute correctly conceded in the appeal hearing) too wide. If the order was indeed as set out in paragraph 3 of the joint minute, the appellant would be in breach of the SOPO even if he was in an identifiable area of the park populated only by adults. One example which could be envisaged would be the appellant's presence at an adult movie or talk taking place in the glass-house in the Winter Gardens where no children were permitted to attend, but children were playing in a children's play-area at another location in the park.

[8] In these circumstances, the advocate depute conceded, rightly in our view, that the jury had been directed to rely upon the joint minute for the terms of the SOPO; that the terms of the SOPO were inaccurately set out in the joint minute and were too wide, resulting in a misleading of the jury as to the nature and extent of the order; and therefore that there had been an unfairness in the trial leading to a miscarriage of justice. In the result, the Crown no longer opposed the appeal against conviction.

[9] We agreed with the advocate depute. We accordingly allowed the appeal and quashed the conviction.