SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT FORT WILLIAM

 

 

 

NOTE

 

by

 

SHERIFF D C W PYLE

 

in causa

 

PROCURATOR FISCAL, FORT WILLIAM

 

against

 

M

 

 

 

 

4 November 2008

 

The accused, who was born in January 1991, pleaded guilty to an amended charge in a summary complaint in the following terms:

"That between 1 July 2007 and 17 August 2007, both dates inclusive, at [an address in Fort William] and elsewhere in Scotland [he] did conduct [himself] in a disorderly manner and did repeatedly telephone [F]... and make sexual comments, placing her in a state of fear and alarm and commit a breach of the peace."

 

As recorded in the transcript of the proceedings, the presiding sheriff was told that during July 2007 the complainer, who is 18 years old, started receiving anonymous calls from a male very late in the night. She did not recognise the caller's voice. If she answered the call she received only one call each night. But if she ignored the call her mobile telephone showed a number of missed calls throughout the night from an unknown caller. The caller usually began the call by saying, "Hi, [her Christian name], how are you doing?" He appeared to have a local accent, although his voice seemed to be muffled. He then made sexually suggestive comments to her and told her what he was doing sexually to himself and what he would like to do to her. For example, he told her that she made him hard and asked if she would like to watch him at work, and that he really liked her tight bum (although it later transpired that this last comment was made to the complainer's mother who took the call after her daughter complained to her about them.) The calls went on throughout July and August 2007. The complainer asked who the caller was and he said, "Try and guess." She became increasingly worried as she was due to leave for university and felt vulnerable about being away from home. The police were contacted and they were eventually able to trace the calls to the accused, who was interviewed under caution. He said that the complainer was a good friend of his, whom he had met at school. He admitted making the calls and said that they were intended only as a joke between good friends. He admitted that he said things like, "Fancy coming round for a shag?" or "I'm feeling really horny". He admitted that he had said, "I really like your tight bum." He also admitted that he probably said to her that he was masturbating when speaking to her, but that he was not in fact doing so. He said that he derived no sexual satisfaction from the calls and that he stopped making them probably because he had run out of free minutes on his telephone. In reply to caution and charge, he said, "It wasn't meant to be sexually offensive."

 

The accused's solicitor was understandably much concerned about whether it was appropriate that the accused should be, in the common parlance, placed on the sex offenders register. The presiding sheriff considered that it was a matter for his discretion and held that he could not decide the matter without further detailed submissions and, perhaps, a proof in mitigation. In order to save time at a later date, he also decided to call for a social enquiry report and community service assessment.

 

When the case called before me, I was told by the accused's solicitor that he intended to lead evidence in support of his submission that the accused should not be placed on the register. I expressed some misgivings about that approach unless it was being maintained that there was a dispute between the Crown and the accused about the narrative which had already been given or what was to be said in mitigation. I heard submissions about that, at the end of which it became clear that the Crown did not accept the following defence contentions:

1. That other people were with the accused when he made the calls;
2. That there were only 10 to 15 calls, of which only 4 were sexual in their content;
3. The reason why the calls stopped;
4. Whether the accused received sexual gratification from making the calls.

 

I decided to allow evidence to be led. There was a joint minute which allowed in evidence the statements given to the police by the complainer and her mother. The accused gave evidence and, obviously, was subject to cross-examination. I found him generally to be a credible and reliable witness whom I thought was still somewhat bemused about the mess he was now in. He was obviously an intelligent young man. It would easy to conclude that his behaviour reflected immaturity, but that would have to be reconciled with his success in his Higher examinations in which he had achieved outstanding grades and which could not have been achieved without dedicated work over a number of years. Other than the fact of his behaviour which he had accepted was a crime, I detected no sign in his demeanour of sexual deviance. I was therefore driven to the conclusion that, as he said in evidence and had said to the police, he thought that his behaviour was a joke. What could possibly be funny about his conduct is impossible for me to say; in my view the complainer and her mother were well entitled to conclude that what had occurred was a matter of the utmost seriousness It was almost inevitable that the conduct would cause distress to the complainer, never mind her parents.

 

I can well understand why the Crown decided not to lead the complainer and her mother in evidence - they had surely endured enough in having to explain the circumstances to the police. It did, however, mean that their evidence as contained in the statements was not the subject of cross-examination. It was therefore always likely that the evidence of the accused would be more persuasive, which indeed was the case. In saying that, I should not wish to suggest that the complainer or her mother had not told the truth as they saw it to the police, but it is not uncommon for witnesses to accept that such statements can be subject to modification after cross-examination without in any way altering the fundamental truth of their evidence. Indeed, that was the situation here, in that I was able to accept much of what the accused said without diluting in any meaningful way the essence of the charge against him.

 

So, always subject to the foregoing general remarks, I was able to accept the following points in mitigation of the accused's conduct:

1. That other boys were present when the calls were made;
2. That the number of calls was about 15;
3. That during only 4 of those calls were the offensively sexual remarks made;
4. That the accused gained no sexual gratification from the sexual remarks he made;
5. That the accused stopped making the calls for a number of confused (in his mind) reasons, which included the fact that the telephone was running out of free minutes, that the summer holidays were at an end and that he received an anonymous call from an unidentified female who claimed falsely to be a police officer and said that the calls must stop.

 

The accused's solicitor submitted that there was no "significant sexual aspect" to the accused's conduct. The preamble to the Act showed that Parliament had not intended that offenders like the accused should be on the sex offenders register. It was significant that sexual intercourse between an offender under 20 years and a girl under 16 years was excluded from those offenders who should be on the register. Reference was made to Clark v HMA 2008 SCCR 659. The social enquiry report said that there were no grounds for referring the accused to the sex offenders programme, that there was a minimal risk of him re-offending and that he was like "a fish out of water".

 

In her brief but as always precise submission, the procurator fiscal depute argued that the essence of the charge to which the accused had admitted his guilt was the sexual nature of the comments he had made. For that reason, the charge contained a "significant sexual aspect" and therefore required notification under the Act.

 

 

Section 80 of the Sexual Offences Act 2003 provides that a person is subject to the notification requirements of the Act if, inter alia, he is convicted of an offence listed in Schedule 3, in which there is a separate list for Scotland. The offences contain in the list include such crimes as rape, indecent assault, lewd, indecent or libidinous behaviour or practices, taking and distribution of indecent images of children and unlawful intercourse with a girl under 16 (but not where the offender was under 20). There is also included in the list the following paragraph 60:

"An offence in Scotland other than is mentioned in paragraphs 36 to 59 [being the list of offences described above] if the court, in imposing sentence or otherwise disposing of the case, determines for the purposes of this paragraph that there was a significant sexual aspect to the offender's behaviour in committing the offence."

 

It is obvious that the crime to which the accused pleaded guilty had a sexual aspect to it. The issue therefore is whether the sexual aspect is "significant". In my opinion, it is not. Before I set out my reasoning for that conclusion, I must, with the greatest respect, disagree with the sheriff who presided over the earlier hearing: I do not agree with him that the issue is one for the exercise of discretion; it is in my view a question of law - a question of statutory construction.

 

The rules of statutory construction are all subject to the overall task which is to ascertain the intention of Parliament expressed in the language under construction (Lord Nicholls of Birkenhead in R v Secretary of State for the Environment, Transport and the Regions, Ex p. Spath Holme Ltd [2001] 2 AC 349, 395, HL).

 

It seems to me that the rule of construction which is particularly apposite to the present case is the one known as ejusdem generis, as described by Lord Campbell in R v Edmundson (1859) 28 LJM.C 213, at p215:

"I accede to the principle laid down... that, where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified."

I agree with the accused's solicitor that it is significant that Parliament decided that there should be excluded from the list the statutory offence of unlawful intercourse with a girl under 16 where the offender was under 20. To that should be added other exclusions from the list, such as an offence of abuse of a position of trust under Section 3 of the Sexual Offences (Amendment) Act 2000 where the offender was under 20. It is in my view plain that the common denominator in the list is an element of sexual deviance (or sexual disorder or deviance - see Clark v HMA, discussed below) which is absent from the instant case. The word "significant" is defined in the Compact Oxford English Dictionary as "extensive or important enough to merit attention". In my opinion "significant sexual aspect" means sexual conduct which is important enough to merit attention as indicating an underlying sexual disorder or deviance from which society is entitled to be protected.

 

Indeed, a failure generally to employ the ejusdem generis rule to Schedule 3 would mean that it would be open to a court to use paragraph 60 to have a 19 year old man subjected to the notification requirements where he had unlawful intercourse with a girl under 16. That would surely be contrary to the clear intention of Parliament.

 

There is, in my opinion, support for the view I have reached in Clark v HMA in the opinion of Lord Eassie (at p 660). The case is concerned with a quite different matter from the instant case, but there are some clues about the High Court's view about the underlying purpose of the notification requirements:

"There are of course public indecency offences - particularly many cases of indecent exposure of the genitalia - which may be committed for sexual gratification and which may demonstrate a sexual disorder or deviance in which the public protection elements of the legislation under consideration in these appeals may be highly relevant [my italics]... In my opinion, the extent to which those committing an offence of public indecency - with its broad ambit including those who may not be sexual offenders in any real sense [again, my italics] - should be... subject to the notification requirements, is properly one for the legislature to define..."

 

Given that I have found that there was no underlying element of sexual disorder or deviance in the accused's conduct, however reprehensible it undoubtedly was, it follows that it does not fall within the ambit of paragraph 60.

 

I should also add that, while it does not form part of my reasoning, I gain some comfort that I have reached the correct decision in this case from the terms of the social enquiry report. My initial thought was that it was inappropriate to look at the report at this stage, given that the practice has always been to decide whether the notification requirements are necessary at the point of conviction and not at the point of sentence which is invariably later. (This is because the relevant date for notification purposes is the date of conviction (Section 82(6)) But I now consider that such an approach is too restrictive given that paragraph 60 requires that I must determine that there was a significant sexual aspect to the offender's behaviour in committing the offence at the point of "imposing sentence or otherwise disposing of the case". (See Clark v HMA, at p663C-D) (This provision does not appear to sit easily with the relevant date definition.) The social worker considers, albeit subject to the important caveat that he bases his opinion solely upon what the accused told him about the offence, that "there are no criminogenic needs that require to be addressed in order to further reduce the risk level" and that there are no grounds for referral to the Joint Sex Offenders Project. Indeed, as the accused's solicitor pointed out, the social worker said that interviewing the accused "has been like seeing a fish out of water".