Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 80

HCA/2015/744/XC

Lord Justice Clerk

Lady Paton

Lord Menzies

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

ALASTAIR GEORGE ROSS

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: S Collins, Solicitor Advocate; Capital Defence

Respondent: Farquharson AD; the Crown Agent

30 July 2015

Facts
[1]        On 13 January 2015, the appellant, who is aged 39, pled guilty to an attempt at “communicating indecently with an older child”; contrary to the Sexual Offences (Scotland) Act 2009, section 34(1).  Over a five day period in March 2014, he repeatedly sent written sexual communications over the internet to a person whom he believed to be a 13 year old girl, but who was, in fact, a Covert Internet Investigator.

[2]        The appellant has one previous conviction for a breach of the peace, with a significant sexual element, in 2005, for which he was fined £100.  The Criminal Justice Social Work Report records that he is educated to University level.  He has worked in various fields, latterly in Children and Families estate management.  He had been unemployed since November 2013.  He was living with a partner. 

[3]        The appellant accepted that he had deliberately set out to find individuals for sexual chat, preferably in an adult-schoolgirl conversation.  He did not accept that he had originally planned to contact a child.  He maintained that he did not intend to meet a child.  The CJSWR stated that, by virtue of committing two sexual offences that were “non-contact” and against a “stranger”, the appellant was at “high risk” of committing further sexual offences.  There was nothing to suggest that he presented an imminent risk of harm.  The CJSWR concluded that the appellant could be effectively managed in the community, noting that “Restrictions specific to his offending behaviour are needed to mitigate the risk he may pose in the community.”  A period of 3 years supervision was suggested, during which the appellant would be provided with “structured, offence-focused work”.  He would also be “monitored and risk managed”.  A conduct requirement would enhance this by restricting his access to children and the internet; both areas posing a risk of re-offending.

[4]        On 19 February 2015 the appellant was sentenced as recommended to a Community Payback Order for a period of three years with the requirement that he complete 210 hours of unpaid work in the community.  A conduct requirement was imposed in the following terms, again (with one typographical error) as suggested in the CJSWR:

(1)        That the offender shall not have any unsupervised contact with any child under the age of 16 years without the prior approval of his supervising officer

(2)        That the offender shall not own, use or have in his possession any internet enabled device including items such as computers, smart phones, games consoles etc. without the prior approval of his supervising officer

(3)        That the offender shall make any approved internet enabled devices available on request for full examination by his supervising officer or officers of Police Scotland

(4)        That the offender shall not use any type of social media or other internet communication tools with (sic) the prior approval of his supervising officer.”

[5]        The sheriff reports that the requirements imposed were typical of those which are imposed on a daily basis.  He continues:

“They are not absolute or blanket restrictions.  In imposing the restrictions I was aware of the rapidly changing social media and internet landscape.  The restrictions did not exclude the appellant from use of social media or internet tools but rather sought to ensure that misuse could be monitored and prevented or curtailed.  It seemed appropriate to me that, in the interests of compliance on the one hand and legitimate use on the other hand, day to day responsibility for the restriction of internet use rested with the supervising officer who had a continuing relationship with the appellant and the ability to keep abreast of and utilise rapidly changing technology.”

Submissions
[6]        The basis of the appellant’s appeal has developed over the course of the appeal proceedings.  The contention in the original Note of Appeal was that the appropriate approach was to impose more definite conditions, such as were imposed in Connal v Dunn 2014 SCCR 513.  These would have enabled the appellant to use the internet unsupervised provided the device was notified to the police and fitted with software capable of monitoring the browsing activity.  It was said that the requirements here were more onerous in that they required prior approval of the supervising officer.  They amounted to a blanket ban on internet use without such approval.  It was originally postulated that the requirements meant that approval for each specific use was needed, but that was departed from.

[7]        The appellant has altered his stance somewhat, whereby it is now said that it is clear from the sentencing sheriff’s report that he had intended the appellant to have use of the internet but that any “misuse” should be prevented.  The sheriff’s intention had been frustrated by the manner in which the requirements had been interpreted by the supervising officer.

[8]        What had happened was that the appellant had not had access to the internet since the imposition of the CPO.  He had been advised at his first meeting with his supervising officer that he would not be allowed access to the internet until his case had passed through at least its three month review.  At that review, he had been advised that he would not be granted authorisation to own or possess any internet enabled device until at least his six month review.  He would be allowed access to the internet one day per week, within a setting such as a library.  That use would be monitored and supervised.  Because of what he had been told, he had not sought permission to use any device. 

[9]        According to the appellant, the supervising officer’s decisions were based on parole practice applicable to all prisoners released on licence.  There was no need to rehabilitate the appellant gradually by restricting his internet use in this way.  This had not been the intention of the sheriff.  If the sheriff had intended to impose a conduct requirement to the effect that the appellant would only be granted access to the internet on a gradual and restricted basis, such a conduct requirement was unduly restrictive and oppressive.  The practical application of the interpretation by the supervising officer had had the effect of a blanket ban on the appellant’s use of the internet for over what was now five months.  Such a blanket ban was impermissible and disproportionate (R v Smith [2011] 1 WLR 1316). 

[10]      The appellant suggested alternative conditions which would allow him to own and use a mobile phone and a computer approved by his supervising officer; provided that any internet device had a capacity to retain the browsing history (which history should not be deleted), and could be inspected on request by the supervising officer or the police.

[11]      The advocate depute contended that the plan in relation to the appellant’s internet use required to be a bespoke one based on a detailed assessment of the risk which he presented.  It was not simply a matter of applying practices employed in parole cases to offenders who were not subject to parole.  As the CPO progressed, the appellant would be granted approval for the use of specific devices, for particular purposes clearly defined in a written internet safety plan.  This would initially prohibit access to social media sites.  It was unlikely that the appellant would obtain approval to use social media until he had completed treatment.  The appellant would not have to obtain prior approval each time he wished to access the internet.  Any device accessing the internet would be subject to inspection by the police and the supervising officer.  In addition, the length of time which the appellant used the internet would be discussed and the supervising officer would work alongside the appellant’s family to establish the amount of time which he would spend using any such device.

[12]      It was correct to say that the plan had been that the appellant would not have access for a period of 3 months.  At the 3 month review the appellant had said that he was coping with the ban and making more constructive use of his time.  He did not require access at present, although he may do in the future.  The position would be reviewed every 6 months.  Monitoring software was not practical or necessary in the appellant’s case (cf Connal v Dunn (supra)).

Decision
[13]      A court may impose a conduct requirement on an offender only if the court is satisfied that the requirement is necessary with a view to securing or promoting good behaviour by the offender or preventing further offending by the offender (Criminal Procedure (Scotland) Act 1995, section 227W(2)(a) and (b)).  With the exception of the typographical error in condition four, the prohibition is clear and leaves the appellant and the enforcement agencies with no real difficulty in understanding what can or cannot be done (Connal v Dunn 2014 SCCR 513, per LJC (Carloway) at para [20]).  The restrictions do not constitute a blanket prohibition such as would, save in exceptional cases, be impermissible (Connal (supra), at para [21]; R v Smith [2011] 1 WLR 1316, Hughes LJ at para [20]).  Rather, the terms of the requirement are such that, whether or not the appellant should have access to the internet, internet enabled devices, social media or any other communication tools is a matter for the appellant’s supervising officer. 

[14]      It would appear that, in practice, the requirement is working well.  The appellant himself has not been protesting about a lack of connectivity.  He will, by all accounts, be given access in one form or another soon.  The court assumes that sentencing sheriffs will be aware of the manner in which Social Work Departments operate a condition of this nature in their localities.  They would require to acquaint themselves with the normal way in which internet restrictions would operate before deciding to impose them.  There is no reason to conclude that the sheriff in this case was unaware of the way the restriction was operated locally.  There is also no basis for holding that it is doing so in an unduly restrictive way.  In these circumstances, the imposition of the CPO with the conduct requirement complained of cannot be seen to be excessive.  The appeal is therefore refused.

[15]      The appeal does, however, raise a point of general importance in relation to the extent to which a court should in effect delegate significant matters of this type to the discretion of supervising officers.  If, for example, a sheriff did not envisage, as part of his requirement, a complete prohibition on internet use for, say, 6 months, it would be unfortunate if, in practice, that is what happens.  Set against that, there is an imperative not to have sheriffs micro-managing common requirements which are being properly supervised on the ground by skilled and competent social workers.

[16]      It may be sufficient for present purposes to say that, if sheriffs are imposing requirements which do allow a large amount of discretion to supervising officers in important aspects of daily life, such as internet access, they must be confident that the practices being operated in their sheriffdoms are generally as they expect them to be.  No doubt, in that context, they will familiarise themselves with what is involved and will consider any representations properly made to them.  They will be able to reflect on matters in the light of experience. 

[17]      If there is a potential problem in a particular sheriffdom, the sheriff will undoubtedly require to spell out the conditions of any requirement in greater detail; perhaps making it clear in a given case that the offender is to be given some access to the internet in a particular manner each day, week or month.  He may request details of any proposed programme for internet access prior to making a requirement, giving due allowance to the general need for any programme to be tailored to the particular needs of, and risk presented by, the particular offender. 

[18]      In exceptional cases, the sheriff may, of course, decide that the CPO should be the subject of a “progress review” (1995 Act, s 227X) thus enabling him to keep control over the practical application of any requirement.  Furthermore, if the offender is concerned about such matters or about the manner in which a requirement is being interpreted, he too may apply to the court to vary the CPO (ibid s 227Y).