Appellant: Edwards AD; the Crown Agent

Respondent: CM Mitchell; Nelsons, Falkirk

23 April 2014

[1] At a first diet at Falkirk Sheriff Court on 4 December 2013, the respondent pled guilty to a charge which libelled that:

"on 14 January 2013 at [a secondary school] you ... did sexually assault SR [aged 15] ... block her exit to prevent her from leaving a cupboard, seize her mobile phone, touch her bottom and breasts over her clothing, attempt to kiss her, kiss her, pull her towards you, expose your naked erect penis to her, masturbate your naked erect penis, make remarks of a sexual nature to her, and rub your naked erect penis against her clothing in the area of her vagina to the emission of semen; CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009".

[2] Having adjourned for the purposes of obtaining a Criminal Justice Social Work Report, on 9 January 2014 the sheriff granted the respondent an absolute discharge. The respondent was then aged 16. The incident took place at a secondary school attended by both the respondent and the complainer, who was aged 15. They were classmates and on friendly terms. They were sitting together in an English class, when the complainer asked for permission to go to the music department and the respondent asked for permission to go to the maths department. The complainer walked with the respondent to the stairs. The respondent decided to accompany the complainer to the music department. They both arrived at the recording studio, where they left their bags and blazers. The respondent played his guitar. The complainer then left the recording studio to go to the music room and the respondent followed her.

[3] According to a narrative agreed by the Crown and the respondent, upon arriving at the music room the respondent touched the complainer's bottom on top of her clothing, tried to touch her breasts and said that he wanted to have sexual relations with her. He tried to kiss her on the lips. The complainer told the respondent that she was not interested and pushed him away. She then left the music room and walked along a corridor into the music room store cupboard. The respondent followed her in, closed the door and stood in front of the door preventing her from leaving. He took hold of her mobile phone and placed it on a nearby shelf, saying "no disturbances". He then assaulted her in terms of the remaining parts of the libel.

[4] The complainer made her way back to class, but later that afternoon, when going home on the bus, she told a friend and later her boyfriend about what had happened. The police were in due course involved and the respondent was questioned. He initially gave a no comment interview, but then provided an account similar to that given by the complainer with the exception that he maintained that the sexual activity had been consensual.

[5] In the course of his plea in mitigation, the respondent's agent told the sheriff something of the general nature of what he asserted, albeit upon some investigation, was the complainer's sexual experience. He described the respondent's conduct as "clumsy, immature, fumbling". It had been maintained by the Crown that the complainer had been left anxious about the incident and had had nightmares concerning it. She had, on the other hand, sought out the respondent at a local social club on occasions, although the respondent had avoided her.

[6] The respondent's personal circumstances were that he was regarded as an intelligent pupil, studying for his higher exams in S5. He was a prefect. Following upon the incident he had been enrolled in a different secondary school, but had been suspended from that, partly, it was said, as a result of being made subject to the notification requirements of the Sexual Offences Act 2003. The offence has had a significant disruptive effect on the respondent's education and his social activities. His younger brother had been the subject of bullying. The respondent comes from a supportive family and has enjoyed a settled and secure upbringing. As a result of the prosecution, he had suffered stress and anxiety and been prescribed medication.

[7] The CJSWR assessed the respondent as suitable for a Community Payback Order and recommended a supervision requirement of 3 years duration in order that a more detailed assessment of the respondent could be carried out and suitably focused work identified.

[8] The sheriff reasoned that, having regard to the respondent's previous good character, and notwithstanding the nature of the offence, it was neither just nor expedient to punish him further. For these reasons, he discharged him absolutely under section 246(2) of the Criminal Procedure (Scotland) Act 1995.

[9] The appellant maintains that the respondent had pled guilty to a serious sexual assault and that there was nothing in the circumstances of the offence, or the CJSWR, the respondent's personal circumstances or the mitigation placed before the court, which would justify such an exceptional disposal. There was nothing which would justify a disposal which would result in the respondent avoiding the mandatory notification requirements of the 2003 Act. In these circumstances, applying the appropriate test in HM Advocate v Bell 1995 SCCR 244, the granting of an absolute discharge was outwith the range of disposals which a sheriff, applying his mind to all the relevant factors, could reasonably have considered appropriate. It was, in particular, submitted that it was of some note that the agreed narrative had contained an account which did not involve a momentary loss of control, but an incident in the music room which had been followed by subsequent actions in the cupboard despite the complainer's previous protestations.

[10] In response, it was submitted that the sheriff had looked at all the circumstances and, having placed due weight upon them, had reached a decision which was within the range identified in Bell. In particular, the sheriff's reasoning in that regard could not be faulted. If it could, then a non-custodial disposal in the form of a Community Payback Order would be the appropriate alternative. In reaching a decision upon sentence the issue of the notification requirements was a factor which ought to be taken into account.

[11] The question for this court is to determine whether the sentence selected by the sheriff was unduly lenient. Having regard to what was an agreed narrative, although the court has had specific regard to the welfare of the respondent as a primary consideration (Hibbard v HM Advocate 2011 JC 149) and the wider impact that this offence has had on his family, especially his brother, it has been driven to the conclusion, not without hesitation, that the sheriff has placed undue weight upon the personal circumstances of the respondent, when balanced against the offence as described in the agreed narrative. The contents of that narrative were sufficiently serious as to require some punitive element in the form of a conviction. In these circumstances the court agrees that an absolute discharge could not have been regarded as an appropriate disposal within the range identified in Bell. It will accordingly allow the appeal to that extent and quash the absolute discharge.

[12] The court then requires to select the appropriate punishment. It was not suggested by the appellant that a custodial disposal was a reasonable option in the circumstances. The court therefore has to determine which non-custodial disposal ought to be imposed. In deciding that matter, it is bound to take into account the fact that, as the court is not proceeding by way of absolute discharge, the respondent will be subject to the notification requirements of the 2003 Act. It has had regard to the period during which these requirements will apply depending upon the sentence selected. Having regard in particular to the age of the respondent, and to all the circumstances of the case, the court considers that the appropriate disposal is a Community Payback Order, but that that should be one of one year's duration, with the associated supervisory requirement.

[13] There are two other matters which require comment. The first is that in the sheriff's report he made reference, as already noted, to the plea in mitigation which contained remarks by the respondent's agent concerning the sexual experience of the complainer. If the sheriff considered that that was a factor of note, and it is not clear from his report whether he did or not, the court wishes to make it abundantly clear that in relation to this offence, which in terms of the agreed narrative did not involve any question of consent, the sexual history of the complainer is entirely irrelevant and no reference whatsoever should have been made to it in open court.

[14] The second matter is that there appears to be some debate over whether the notification requirements under the 2003 Act apply where there has been an absolute discharge. In this case, of course, the respondent was initially convicted and, as a general rule, the notification requirements do apply upon conviction of a listed offence. However, section 247(1) of the 1995 Act provides that:

"... a conviction of an offence for which an order is made discharging the offender absolutely shall be deemed not to be a conviction for any purpose ...".

The court also has regard to the terms of section 14 of the Powers of Criminal Courts (Sentencing) Act 2000, whereby an absolute discharge is similarly deemed not to be a conviction (see R v Longworth [2006] 1 WLR 313), which applies to Scotland by virtue of section 167(2) of the 2000 Act. Having regard to both of these statutory provisions, it is not clear to the court why it is thought by the appropriate authorities that the notification requirements, which would have applied initially upon the conviction pending sentence, continue to apply once an absolute discharge has been selected as an appropriate disposal.