SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS
AT INVERNESS
B64/05
JUDGEMENT
of
SHERIFF
PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
in the cause
THE CHIEF CONSTABLE, NORTHERN
CONSTABULARY
Pursuer and Appellant
against
GRAEME MACPHERSON TOUGH
Defender and Respondent
|
Act:
Ms Leslie Johstone, solicitor, The Highland Council, Inverness
Alt:
Ms Elaine Young, solicitor, The Mackenzie Law Practice, Inverness
Inverness: 10th March 2006
The
sheriff principal, having resumed consideration of the cause, refuses the
appeal and adheres to the interlocutor of the sheriff dated 19 July
2005; finds the pursuer and appellant liable to the defender and respondent in
the expenses of the appeal and allows an account thereof to be given in and
remits the same, when lodged, to the auditor of court to tax and to report; quoad ultra remits the cause to the
sheriff to proceed as accords.
Note
[1] The sheriff has set out the background to
this matter in the full and careful note which he appended to his interlocutor
dated 19 July 2005. In this situation I think that it is
unnecessary that I should myself set out the background.
[2] In terms of the interlocutor which is the
subject of this appeal the sheriff made an interim sexual offences prevention
order against the defender. This he did
in terms of section 109(3) of the Sexual Offences Act 2003 which provides: "The
court may, if it considers it just to do so, make an interim sexual offences
prevention order, prohibiting the (defender) from doing anything described in
the order". It is evident from the terms
of this sub-section that the sheriff had a discretion whether or not to make an
interim sexual offences prevention order, and it is well established that a
court of appeal may only interfere with the decision of a court of instance
made in the exercise of a discretion where, broadly, the court of first
instance has erred in law, misunderstood or misused the evidence or the
material facts before it, taken into account an irrelevant consideration or
failed to take into account a relevant consideration or reached a decision
which may be categorised, for example, as "plainly wrong", "manifestly
inequitable" or "unreasonable" - see Macphail's Sheriff Court Practice (2nd
Edn) at paragraphs 18.110/1.
[3] In his note of appeal the pursuer
originally proposed eight grounds of appeal.
But in the course of the hearing of the appeal his solicitor indicated
that she no longer insisted on grounds 1, 2, 3 and 7. She also stated that she relied only upon
errors of law on the part of the sheriff as a basis upon which I might
interfere with the decision made by the sheriff in the exercise of his
discretion.
[4] Grounds 4 and 5 in the note of appeal both
refer to a passage on page 9 of the sheriff's note where, referring to an
interim sexual offences prevention order, he wrote:
It also seems to me that as the order restricts the free
movement of the defender, the court should be slow to grant any order which is
more than the minimum required to achieve the exact purpose sought by the chief
constable and that he should be in a position from the outset to explain
clearly the exact purpose he wishes to achieve and the exact mischief he wishes
to prevent. That, in my opinion, is a
necessary part of the definition of "just" in section 109(3).
[5] In ground of appeal 4 it is said that the
sheriff erred in law in this passage by suggesting that the minimum
intervention principle applied to the Sexual Offences Act 2003. Reference is made to section 107(2) which
provides: "The only prohibitions that may be included in the order are those
necessary for the purpose of protecting the public or any particular members of
the public from serious sexual harm from the (defender)". It is pointed out that there is no reference
in this sub-section to a condition (presumably what is meant here is a
prohibition) being the minimum required.
[6] In ground of appeal 5 it is again said that
the sheriff erred in law in the same passage on page 9. It is said:
The word "just" in that section refers to whether, in all
the circumstances, an interim order should be granted. It is concerned with the usual considerations
applying to the grant of an interim order and would, for example, require that
a prima facie case has been
made. Once the sheriff has decided that
it is just to grant an interim order he then has to consider whether the
conditions are necessary to protect the public from serious sexual harm. The pursuer had made a prima facie case that an order should be granted.
[7] I confess that I did not find the
submissions of the pursuer's solicitor always easy to follow. Referring to grounds of appeal 4 and 5, she
essentially repeated what had been stated in these grounds of appeal, and I did
not understand her to be advancing any other point of significance in relation
to these two grounds.
[8] Section 105(3) provides, in the context of
this case, that the sheriff may make a sexual offences prevention order where
satisfied "(a) that the person's
behaviour since the conviction or finding makes it necessary to make such an
order, for the purposes of protecting the public or any particular members of
the public from serious sexual harm from the (defender)". The meaning of the expression "protecting the
public or any particular members of the public from serious sexual harm from
the (defender)" is explained in section 106(3) where it is provided that this
expression "means protecting the public in the United Kingdom or any particular
members of that public from serious physical or psychological harm, caused by
the (defender) committing one or more offences listed in schedule 3". I have already quoted sections 107(2) and
109(3) and in light of this statutory framework I am quite unable to detect any
error of law on the part of the sheriff in the passage on page 9 of his note to
which the pursuer has taken exception.
[9] Ground of appeal 6 refers to a passage on
page 10 of the sheriff's note where he wrote:
It is obvious that there is a substantial difference
between offences of exposure to middle aged women and having sex with a
child. That, however, does not, in my
opinion, prevent the court granting the order sought; all that the Act requires
is that the defender commit an offence as defined and that he commit another
offence as defined - the offences do not need to be of the same kind, other
than being included in the list of offences in paragraph 60 of schedule 3.
[10] In ground of appeal 6 it is said that the
sheriff erred in law in this passage in that:
he states in his reasoning that all the Act requires is
that the defender committed an offence as defined and that he committed another
offence as defined. Section 105(3)(a) of
the Sexual Offences Act 2003 states that the sheriff may make an order where
satisfied that the person's behaviour since the conviction or finding makes it
necessary to make such an order for the purposes of protecting the public or
any particular members of the public from serious sexual harm from persons such
as the defender.
[11] In support of this ground of appeal the
pursuer's solicitor submitted that the Act did not require that the defender
should have committed a further offence (following, so I understood her, an
initial offence as specified in section 105(1)(a)(i) of the Act) but that the
defender's behaviour, even if it fell below that required to constitute a
criminal offence, should justify the making of an order.
[12] It is I think fair to say that this
particular passage in the sheriff's note is not perhaps expressed as happily as
it might have been. When I first read it
I thought that what the sheriff was perhaps saying was that, before an interim
sexual offences prevention order could be made, it was necessary that the
defender should have committed at least two offences from among those listed in
paragraph 60, one after the other. If
this is indeed what he meant, then it respectfully seems to me that he erred in
law since I do not see any requirement in the relevant sections of the Act to
the effect that an interim sexual offences prevention order may only be
pronounced where two such offences have been committed. It may be that what the sheriff had in mind
here was the definition in section 106(3) of the expression "protecting the
public or any particular members of the public from serious sexual harm from
the (defender)". In short, this means
protecting the public from serious harm "caused by the (defender) committing
one or more offences listed in schedule 3".
It occurs to me that in this passage, when he spoke of the defender
committing "another offence as defined", the sheriff had in mind section
106(3). But, if this is correct, then
again in my opinion he fell into error in stating that "the offences do not
need to be of the same kind, other than being included in the list of offences
in paragraph 60 of schedule 3" since, while the offence referred to in section
105(1)(a)(i) must be one listed in paragraph 60 of schedule 3, for the purposes
of section 106(3) an offence merely requires to be listed in schedule 3, and is
not restricted to one listed in paragraph 60 of this schedule.
[13] Ground of appeal 8 is in the following terms:
The sheriff has erred in law by considering the effect of
the conditions sought on the defender rather than whether it is necessary to
protect the public or particular members of the public from serious sexual
harm. On page 15 of (his) note the
sheriff states that conditions 8, 9 and 10 are unduly "onerous". The test contained in section 107 of the said
Act is not whether the condition is unduly onerous but whether it is necessary.
[14] Referring to this ground of appeal, the
pursuer's solicitor drew attention to a passage on page 15 of the sheriff's
note where he stated:
As regards the eighth condition, the pursuer's solicitor
said that it was justified by the defender's conduct, which resulted in the
convictions for public indecency and breach of the peace. In my opinion, this condition is unduly
onerous. I accept that the defender's modus operandum for offences of public
indecency are likely to involve the use of quiet areas of the countryside, but
as I have already said it is not inherent in such conduct that it is likely to
cause serious physical or psychological harm to his victims. There is no suggestion that the defender's
behaviour towards young girls involves the use of secluded areas. I shall vary the order by excluding this
condition.
[15] In part 8 (as amended) of his first crave the
pursuer sought an order against the defender prohibiting him, for a period of
not less than five years, from entering any woodland, forest, including any
path which passes through such areas, other than for the purpose of undertaking
work on a Community Service Order under supervision of a Highland Council
employee.
[16] In this context the pursuer's solicitor
essentially repeated what had been said in ground of appeal 8, namely that the
sheriff had erred in considering part 8 of the pursuer's first crave from the
defender's viewpoint, the correct test being, not whether the prohibition
sought by the pursuer was unduly onerous, but whether it was necessary.
[17] I am not persuaded that the sheriff fell into
error in the passage on page 15 of his note to which the pursuer has taken
exception. In terms of section 109(3)
the sheriff had a discretion whether or not to make an interim sexual offences
prevention order if he considered it "just to do so". It seems to me that the sheriff's description
of part 8 of the pursuer's first crave as "unduly onerous" is no more than an
aspect of his consideration whether or not it would be just to grant an interim
order and, for the rest, essentially what I think he was saying in this passage
is that he did not consider that part 8 of the pursuer's first crave was
necessary to protect the public or any particular members of the public (and
specifically girls under the age of 16 years) from serious physical or
psychological harm. As a matter of law
this was a conclusion which in my opinion he was perfectly entitled to reach.
[18] There remains the question what should be the
effect upon the outcome of this appeal of my conclusion that the sheriff erred
in law in the passage which I have quoted from page 10 of his note. As is pointed out in Macphail at paragraph
18.110, "The appellate court's function is initially one of appeal only. It may set aside the judge's exercise of his
discretion only for certain reasons, which are about to be discussed, and it is
only if and after it has reached the conclusion that the judge's exercise of
his discretion must be set aside for one or other of those reasons that the
appellate court becomes entitled to exercise an independent discretion of its
own". But it is one thing to say that an
appellate court may exercise an independent discretion of its own, and another
thing to say that it should do so when no reasons have been advanced by the
appellant to demonstrate why the conclusion to be reached by the appellate
court should differ from that reached by the court of first instance. In the present case the pursuer's solicitor
submitted that I should recall the interim sexual offences prevention order
which had been granted by the sheriff in terms of his interlocutor dated 19
July 2005 and in its place grant an interim sexual offences prevention order in
terms of all ten parts of the pursuer's first crave subject to the amendments
which had previously been allowed in terms of the interlocutors dated 14 April
and 19 July 2005. She submitted that the
pursuer had made out a prima facie case
to the effect that there was a need to protect the community, or particular
members of the community, from serious physical or psychological harm in that
the nature of the defender's offending and his behaviour since his conviction
in September 2004 had been such as to give reasonable cause to believe that it
was necessary for an order to be made in terms of all ten parts of the
pursuer's first crave as amended.
[19] The difficulty I have in giving effect to
this submission is that nothing was said by the pursuer's solicitor to indicate
why an interim order in terms of all ten parts of the pursuer's crave as
amended was to be preferred to the interim order which the sheriff in fact
granted in terms of his interlocutor dated 19 July 2005. Thus she did not seek
to address separately the merits or otherwise of each of these ten parts. It
does not follow from the mere fact that the sheriff erred in law in the single
respect which I have identified that I should exercise my discretion on appeal
to recall the interim order which he granted and in its place substitute an
interim order in the terms sought by the pursuer. As is said in Macphail at
paragraph 18.100, "On an appeal from the sheriff principal or the sheriff, the
appellate court, whether it is the Inner House or the sheriff principal,
regards the interlocutor complained of as a valid and correct judgement which
must remain so until the appellant shows cause why it should be altered". This
the pursuer's solicitor did not do. I have accordingly refused the appeal.
[20] It was not in dispute that the pursuer should
be found liable to the defender for the expenses of the appeal in the event
that it was unsuccessful.
