Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 77

HCA/2014/1101/XJ

Lord Justice Clerk

Lord Brodie

Lord Wheatley

SUPPLEMENTARY OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

STEVEN CONNAL

Appellant;

against

PROCURATOR FISCAL, STIRLING

Respondent:

Appellant:  S Collins, Solicitor Advocate; Capital Defence Lawyers

Respondent:  Bain AD; the Crown Agent

4 July 2014

[1]        At the advising of this appeal, the Crown submitted that a condition which required an offender to use a device which recorded the history of internet use was not a practicable solution.  It is a relatively simple task to activate anonymous browsing or to conduct undetectable browsing through cloud based systems.  The appropriate condition was one which involved embedding software into an offender’s computer or phone which would send an e-mail to the police periodically setting out the offender’s browsing activities.  It was also appropriate to have conditions which: (a) prevented third party Apps being installed without permission; (b) required the offender to retain all passwords; and (c) prohibited him from using encryption for any purpose.  Having heard the appellant in response, the court modified its draft conditions to read as follows:

“2(i) owning or possessing more than one mobile phone and more than one computer (whether desktop, laptop or otherwise); (ii) owning or possessing any such device without advising the police in the area in which he lives of the serial number of that device and any passwords for the devices and using any such device until it has been registered by the police and monitoring software installed by the police; (iii) accessing the internet by any other device without the express written approval of the police; (iv) using any telephone number or e-mail address without advising the police of that number or address;  (v) installing any third party application on any such device without the permission of the police; and (vi) using any encryption on any such device for any purpose;

3(i) accessing or otherwise using in any way, any internet social networking site, including Facebook; or (ii) accessing any other internet site, unless in the course of his employment, training or voluntary work, except by using a device which has been registered by the police and on which monitoring software has been installed; any such device requiring to be made available to the police upon request with all passwords to access the device.”

The court allowed the appeal to the extent to substituting these conditions into the Sexual Offences Prevention Order where appropriate.