Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 96

HCA/2014/-002036/XJ

Lady Paton

Lord Menzies

Lady Smith

OPINION OF THE COURT

delivered by LADY SMITH

in

APPEAL

by

EA

Appellant;

against

PROCURATOR FISCAL, DUNDEE

Respondent:

Act:  Paterson Solicitor Advocate;  Paterson Bell

Alt:  McSporran, Advocate depute;  Crown Agent

6 August 2014

Introduction
[1]        The appellant pled guilty, at Dundee Sheriff Court, to having sexually assaulted his 25 year old stepdaughter, on 18 August 2012, by placing his hand under her bedcovers whilst she was asleep and rubbing her buttocks over her pyjamas. 

[2]        The appellant was aged 63 years at the time of the offence.  He was aged 65 years at the date of sentencing.

Previous convictions
[3]        The appellant had previous convictions which included a conviction for rape, committed in 1983, when he was 34 years old.  He was sentenced to 8 years imprisonment for the rape (and a breach of the peace), in 1985.  He was released from that sentence in 1990.  There are no other sexual offences on his schedule of previous convictions.  Accordingly, whilst it is, of course, important to recognise that the offence the appellant committed in 1983 was a very serious one, he had not, until his conviction for the present offence, been convicted of a sexual offence for 30 years, during 23 of which he had been at liberty in the community.

Sentence
[4]        The sheriff sentenced the appellant, on 16 April 2014, to a Community Payback Order (“CPO”) comprising:

• An offender supervision requirement requiring him, for a period of three years, to attend appointments with and as directed by his supervising officer for the purpose of promoting his rehabilitation;and
• A requirement that he attend and participate in the Tay Project programme, also for a period of three years, as directed by his supervising officer and that he comply with any instructions given by or on behalf of the person in charge of the programme.

The sheriff also imposed a Sexual Offences Prevention Order (“SOPO”) under section 104(1)(b) of the Sexual Offences Act 2003, prohibiting the appellant from:

• Initiating or having contact with any female without having (i) sought and obtained the approval of his criminal justice social worker or police offender manager,and (ii) having disclosed full details of his offending history to that female;
• Engaging in any business, employment or other activity likely to bring him into contact with any female without the prior approval of his criminal justice social worker or police offender manager;and
• Initiating or having any contact with any child without the approval of his criminal justice social worker or police offender manager.

The appellant also became subject to the notification requirements of the 2003 Act, for a period of three years.

The issue on appeal
[5]        The issue for this court was whether the sheriff erred in imposing a SOPO.  The appropriateness of the imposition of a CPO, in the above terms, was not challenged.

Decision
[6]        Having adjourned at the end of the appeal hearing on 6 August 2014, we returned to court and gave our decision which was to quash the SOPO with immediate effect.  We indicated that we would provide reasons in writing at a later date, which we now do. 

The procedure adopted by the sheriff and his reasons
[7]        The sheriff ordered a Criminal Justice Social Work Report (“CJSWR”) and a Tay Project Assessment Report (“TPAR”).   The CJSWR stated that the appellant was at high risk of reoffending and the TPAR stated that he was suitable for inclusion within their Community Sex Offender Groupwork Programme.  The sheriff stated, in his report for this court, that those assessments “reinforced” his own concern which arose from the “character and circumstances of the offence”, “the appellant’s record”, and “the risk profile particularly in view of the type of business which the appellant carried on (a guest house and the rental of flats)”. 

[8]        After having considered these reports, the sheriff decided that he needed to consider whether to impose a SOPO.  He, accordingly, sought a report from Mrs Vicky Orme, a forensic psychologist.  The instructions to Mrs Orme included a letter to her from him which was not disclosed to parties in advance, in the following terms:

“Dear Mrs Orme:

EA

While the index offence is not the most serious of its type, there are a number of troubling aspects to this case which makes me very concerned about future risk.

Firstly, there is Mr A’s record.  Although he has not offended for some time the character and circumstances of offences in 1985 and 1997 are concerning:  see Page 3 of the CJSWR dated 28 January 2014.

Secondly there is the information which suggests that diazepam was found in the glass left by the complainer’s bedside.  (Mr A denies this and it was not part of the Crown disclosure made to the defence).

Thirdly, there is the information suggesting an inappropriate attitude towards women:  Tay Project Assessment Report, page 3, paragraph 5.

Fourthly there is the apparent lack of insight on Mr A’s part.

Fifthly, there is the nature of Mr A’s business and property interests and the opportunities/risks which that might present in relation to further offending.

As matters stand, it appears to me that a reasonably lengthy period of supervision provides better protection for the community than a short jail sentence.

I am also considering whether a SOPO would be appropriate.

Thus, I am particularly interested in your view of the level of risk which Mr A presents;  whether such would justify a SOPO;  and if so, the nature of any SOPO conditions which you think would be appropriate to minimise that risk.

Sheriff Kenneth McGowan

Dundee, 31 January 2014”

The sheriff’s basis for seeking Mrs Orme’s opinion as to whether or not a SOPO would be justified is unclear. That was a  judgment which he had to make, not Mrs Orme.

In his report to this court, the sheriff states that he had regard to all the reports and attached “particular weight” to Mrs Orme’s conclusions and recommendations when deciding to impose the above SOPO.  As to its terms, he states that he considered that

“... the precise details of how these prohibitions were complied with, going forward, were better dealt with as a matter of discussion and agreement between the appellant and Criminal Justice Social Work or Police Defender Management as appropriate.”

CJSWR, TPAR and psychological report
[9]        These reports are, in a number of respects, of concern.  Of particular concern is that they proceed on the basis that the offence committed by the appellant involved, as a matter of established fact, pre-planning by the appellant with his having intended to incapacitate the appellant by means of illicitly administering diazepam to her.  This is the matter secondly referred to by the sheriff in his letter to Mrs Orme.  It emanated from a passage in the CJSWR in which its author stated that the police told her that tests had shown that diazepam had been found in a glass of water and Voltarol, which the appellant had left by the complainer’s bedside.  It was, however, not a matter which could properly be relied on as established fact.  It was not fair to the appellant to do so.

[10]      No such matter featured in the charge on the complaint, it was not part of the Crown narrative and was not raised with the appellant or his advisers in the course of the prosecution or before he was interviewed by the author of the CJSWR.  Had it been an aspect of the charge and the Crown narrative, the offence committed by the appellant on 18 August 2012 would have been a far more serious one.  At the very least, if established, it would have demonstrated significant pre - planning of a sinister nature.  It was, however, not only not admitted by the appellant when put to him at interview by the author of the CJSWR but that was the first he had heard of the allegation.  It seems to have arisen from the author’s discussion with a police officer and/or “access to records held by Police Scotland”;  neither were disclosed to the defence at any time.  The appellant and his advisers had, accordingly, had no opportunity to consider any evidence on which the allegation was based and no opportunity to challenge it.  Nor did the sheriff afford his solicitor the opportunity to address him on the terms of the letter he proposed to write to Mrs Orme, before sending it. 

[11]      Notwithstanding all of the above, relying, it seems, on what was gleaned from the police – and, in Mrs Orme’s case, perhaps also on the terms of the sheriff’s letter to her -  the reports proceed on the basis that “this was clearly a planned offence” (CJSWR at p7 para 9), that the appellant is to be criticised as not taking full responsibility for his actions in respect that he did not accept that they were pre – planned (CJSWR p3 para 5(a), p7 para 9), and that the appellant “tried to incapacitate the current complainer using Diazepam” (psychological report p6). 

[12]      We also have other concerns about these reports, as follows. 

[13]      The CJSWR refers to the breach of the peace of which the appellant was convicted in 1969 – when he was 21 years old - as being an “indecent” one on the basis, it seems, that the appellant’s explanation was that he was urinating in the street;  the author notes, however, that there is no further information about that offence.  It also refers to the breach of the peace of which he was convicted in 1997; the author notes that he was at the back of a tenement building, looking through the window of a ground floor flat.  Both of these offences are, however, relied on in the reports as having been sexual offences and the appellant is assessed on the basis that he is a person with a “prior history of sexual convictions dating back to 1969” (our emphasis) (CJSWR p5 para 7);  that is, on the available information, not correct. 

[14]      The risk assessments in the reports are influenced by their authors considering that it was “of obvious concern that {the appellant] runs a guest house and rents out several properties which would provide opportunity for victim access” (CJSWR p6 para 7) and he is criticised for having no insight regarding the “complete inappropriateness of his business endeavours given his offending history” (psychological report p8).  However, the authors have had no regard to the fact that the complainer in the present case was a family member - not a guest in the guest house or a tenant of one of his flats - or to the fact that he had been running his guest house/flat letting business for sixteen years without any analogous offence having occurred.  Nor does Mrs Orme appear to have appreciated that it would be for the court, not for her, to decide what is and is not appropriate so far as the appellant’s choice of business activities is concerned.

[15]      Mrs Orme’s report also relies on allegations about sexual touching by the appellant, of stepdaughters, in 2008.  The information appears to have come from a perusal of police records.  The police did not, however, take any action.  The appellant explained to Mrs Orme what had happened; he said there was no sexual element. 

[16]      When assessing risk, Mrs Orme states that “chronicity of sexual violence” and “diversity of sexual violence” are definitely relevant in the appellant’s case.  However, even if the breaches of the peace in 1969 and 1997 could be categorised as sexual, neither they nor the present offence can, on any basis, be categorised as involving “violence”.  She also states that “escalation of sexual violence” is “possibly/ partially relevant” but the appellant’s offending does not demonstrate an escalation in sexual violence.  Mrs Orme states that “… Mr A will inevitably have limits placed upon his access to vulnerable groups …” without acknowledging that the decisions about what restrictions are appropriate would be a matter for the court and the court alone. 

[17]      For the avoidance of doubt, we are not suggesting that it is never appropriate for the authors of such reports – or the court – to have regard to facts that are additional to those in a Crown narrative.  There may, for instance, be additional facts which are admitted by the offender or which have been established in some other forum.  Care must, however, be taken to avoid treating allegations or suspicions as established fact, particularly where the offender has had no proper opportunity to consider or answer them.  Such care has not, we consider, been taken in the present case either by the sheriff – who, effectively, invited Mrs Orme to have regard to the diazepam allegation – or, separately, by the authors of the reports. 

[18]      These concerns call into question the reliability of important aspects of the risk assessments and the recommendations in the reports regarding the restrictions that ought to be placed on the appellant; those recommendations were, nonetheless, directly reflected in the terms of the SOPO imposed by the sheriff.

SOPOs
[19]      A SOPO restricts the offender from doing anything that is described in the order for a period of at least five years: Sexual Offences Act 2003 sec 107.  A SOPO amounts to a significant intrusion into the private and family life of the offender; his rights under art 8 ECHR are obviously engaged.  Also, each prohibition creates the potential, for the offender, of the commission of further offences since breach of any of them will amount to a new offence, to be sanctioned by punishment of up to five years imprisonment.  Being subject to a SOPO is a very serious matter.  It is, accordingly, not surprising that the hurdles to be overcome before the imposition of a SOPO is permitted are high ones; that is entirely appropriate.  Section 104(1)(b) of the 2003 Act provides:

“104     Sexual offences prevention orders: applications and grounds

(1)        A court may make an order under this section in respect of a person (“the defendant”) where any of subsections (2) to (4) applies to the defendant and –

(a)        ...

(b)        … it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant."

[20]      The requirement that the court must be “satisfied” connotes that it must have a proper and sound basis for its conclusions.  As for those conclusions, the terms of sec 104(1)(b) show that the court must be able to conclude (i) that there is a real risk that the offender will, in the future, cause serious sexual harm to the public or to particular members of the public, (ii) that it is necessary to impose a SOPO to protect the public/particular members of the public from that harm, (iii) that the imposition of a SOPO would, in all the circumstances, be proportionate, and (iv) that the precise terms of the SOPO proposed would not be oppressive.  As was observed by Hughes LJ, in R v Smith [2012] 1 WLR 1316, “The SOPO must meet the twin tests of necessity and clarity.  The test of necessity brings with it the subtest of proportionality.”  

[21]      It follows that, when considering whether or not a SOPO is necessary, the court must have regard to the other protections which may be afforded to the public as a result of the conviction or other aspects of the offender’s sentence.  A SOPO will not be necessary if it would simply duplicate them.  In particular, the sex offender notification rules apply upon conviction of most sexual offences (Sexual Offences Act 2003 sec 80–102) and afford a measure of control.  Then, in this jurisdiction, if a community sentence is imposed, the court may build in public protection through the terms of a community payback order:  Criminal Procedure (Scotland) Act sec 227A–ZK.  In particular, the court may, as part of such an order, impose a conduct requirement, tailored to the circumstances of the individual case, requiring the offender to do or refrain from doing specified things, if it considers that such a requirement is necessary to secure or promote the offender’s good behaviour or prevent him from engaging in further offending:  sec 227W.  A measure of protection may also be achieved through supervision and programme requirements:  sec 227G and 227P.  Also, if a custodial sentence is imposed, appropriate licence conditions may be imposed when the offender is released from custody.  Put shortly, much, if not all, that can be achieved through a SOPO, may also be achieved through a carefully considered CPO thus rendering the imposition of a SOPO unnecessary.

Reasons for decision
[22]      We had little difficulty in accepting the appellant’s contention that the sheriff placed undue weight on the reports.  They ought to have been read with a discriminating and cautious eye, for the reasons we have already explained.  Also, regard ought to have been had to the control mechanisms to which the appellant will be subject through having been placed on the Sex Offenders’ Register, being subject to a supervision requirement under the CPO and being subject to the Tay Project programme requirement, also under the CPO.  Had all that been done, it could not, we consider, have been concluded that the requirements of sec 104(1)(b) were met. 

[23]      Separately, we are satisfied that the SOPO imposed was oppressive to a substantial degree.  The appellant could not, for example, have gone shopping for food – an activity which would have been bound to put him at risk of having contact with a female - without first obtaining the approval of his supervising officer or police offender manager and disclosing details of his offending history to any female with whom he came into contact whilst so doing.  Also, despite the sheriff stating in his report that he had not imposed a prohibition on the appellant carrying on his business, the condition preventing him from engaging in any business likely to bring him into contact with any female without the permission of his supervising officer or police offender manager would, we accept, have been bound to have that effect.  Further, it is not, as is suggested by the sheriff, for offenders and their supervisors to enter into agreements that a SOPO will be subject to detailed terms that are not expressed in the order of the court.  It would not, contrary to what seems to have been anticipated by the sheriff, have been open to the appellant’s supervisors to have ameliorated the very wide reaching restrictions of this SOPO in any respect.  Accordingly, even if we had been satisfied that the requirements of sec 104(1)(b) were met, the SOPO imposed could not have been in these terms. 

[24]      We should add that we considered whether a conduct requirement ought to be added to the CPO so as to exclude the appellant from the guest house which he runs with his wife, during night-time hours, but concluded that it was not, in all the circumstances, necessary to do so.