Scottish Sheriff Court Decisions

Act:  McGillivray

Alt:  Sandeman/Travers

Falkirk, 23 January 2014

Introduction

[1]        This Note is relative to the interlocutors pronounced today in each of these summary applications.

[2]        Each application represents a request for an interim Sexual Offences Prevention Order (“SOPO”) in respect of the defender.

[3]        The first summary application, under reference B168/13, is what I will call the main application and the second, under reference B502/13 is what I will call the application for renewal.

Statutory Provisions

[4]       The provisions of the Sexual Offences Act 2003, so far as relevant, are as follows:

104Sexual 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)where subsection (4) apples,it is satisfied that the defendant’s behaviour since the appropriate date makes it 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;

(b)in any other case, 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.

(2)This subsection applies to the defendant where the court deals with him in respect of an offence listed in Schedule 3 or 5.

(3)This subsection applies to the defendant where the court deals with him in respect of a finding—

(a)that he is not guilty of an offence listed in Schedule 3 or 5 by reason of insanity, or

(b)that he is under a disability and has done the act charged against him in respect of such an offence.

(4)This subsection applies to the defendant where—

(a)an application under subsection (5) has been made to the court in respect of him, and

(b)on the application, it is proved that he is a qualifying offender.

(5)A chief officer of police may by complaint to a magistrates' court apply for an order under this section in respect of a person who resides in his police area or who the chief officer believes is in, or is intending to come to, his police area if it appears to the chief officer that—

(a)the person is a qualifying offender, and

(b)the person has since the appropriate date acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made.

106Section 104: supplemental

(5)“Qualifying offender” means a person within subsection (6) or (7).

(6)A person is within this subsection if, whether before or after the commencement of this Part, he—

(a)has been convicted of an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 5,

(b)has been found not guilty of such an offence by reason of insanity,

(c)has been found to be under a disability and to have done the act charged against him in respect of such an offence, or

(d)in England and Wales or Northern Ireland, has been cautioned in respect of such an offence.

(8)“Appropriate date”, in relation to a qualifying offender, means the date or (as the case may be) the first date on which he was convicted, found or cautioned as mentioned in subsection (6)…

108SOPOs: variations, renewals and discharges

(1)A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual offences prevention order.

(2)The persons are—

(a)the defendant;

(b)the chief officer of police for the area in which the defendant resides;…

109Interim SOPOs

(1)This section applies where an application under section 104(5) or 105(1) (“the main application”) has not been determined.

(2)An application for an order under this section (“an interim sexual offences prevention order”)—

(a)may be made by the complaint by which the main application is made, or

(b)if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.

(3)The court may, if it considers it just to do so, make an interim sexual offences prevention order, prohibiting the defendant from doing anything described in the order.

112Sections 104 and 106 to 109: Scotland

(1)Sections 104 and 106 to 109 apply to Scotland with the following modifications—

(aa)the references in subsection (2) and (3)(a) of section 104 to an offence listed in Schedule 3 or 5 shall be read as references to an offence listed at paragraphs 36 to 60 of Schedule 3;

(b)an application under subsection (5) of section 104 shall not be competent in respect of a person who is a qualifying offender by virtue only of a conviction or finding which relates to any offence listed at paragraphs 64 to 111 of Schedule 5;

(c)references to a chief officer of police and to his police area are to be read, respectively, as references to a chief constable and to the area of his police force;

(d)references to the defendant are to be read as references to the person in respect of whom the order is sought or has effect;

(e)an application for a sexual offences prevention order is made by summary application to any sheriff

(a)within whose sheriffdom the person in respect of whom the order is sought resides;

(ea)an application for an interim sexual offences prevention order—

(i)is made by way of the main application; or

(ii)if the main application has been made, is made, by application to a sheriff for the sheriffdom of the sheriff to whom the main application was made, by the person who made that application,

(f)an application for the variation, renewal or discharge of a sexual offences prevention order which was made on an application under section 104(5) or 105(1) or an interim sexual offences prevention order is made by summary application to the sheriff who made the order or to a sheriff—

(i)within whose sheriffdom the person subject to the order resides;

Background

[5]        The process in this case started with the main application which was lodged on 4 April 2013.  On 17 April 2013 an interim SOPO was granted for a period of 6 months which in summary prohibited the defender from (1) having any contact with persons under the age of 18;  (2) contacting vulnerable persons;  (3) owning or possessing a mobile phone or other device without providing details thereof to the police;  (4) accessing the internet except for certain purposes; (5) accessing social networking sites;  (6) possessing any device capable of internet access without first providing details to the police;  and (7) allowing the police to examine any electronic device used by the defender.  The application was then sisted pending legal aid.  On 25 April 2013, following a motion for the pursuer, the order was amended to bring the pursuer’s designation up to date following reorganisation, but the order still ran from 17 April 2013.  On 4 October 2013 a motion was lodged on behalf of the pursuer to recall the sist and to grant decree with no expenses due to or by either party.  That was opposed and the motion was appointed to a hearing on 23 October 2013.  On that date there was no appearance for the pursuer.  The pursuer’s motion was refused with a consequent finding in expenses in favour of the defender.  The defender’s motion at the bar for dismissal was refused and a peremptory diet was fixed for 20 November 2013.  In the meantime the pursuer lodged a separate summary application for renewal of the SOPO on 6 November 2013.  This application is substantially in the same terms as the main application and appears to have been presented as a consequence of the procedure in the main application on 23 October.  The application came before me on 13 November 2013, when a minor amendment was allowed and the application continued to 20 November for submissions on the competency of the application for renewal and to call alongside the main application. I requested vouching of current bail orders and the current probation order (see below).  In the meantime, on 18 November 2013 a motion was lodged on behalf of the pursuer in the main application seeking an interim SOPO in the same terms as sought in the application for renewal and this was also appointed to be heard on 20 November.  On 20 November both applications were continued by another Sheriff to 27 November for me to deal with.  On 27 November, having heard submissions, I made avizandum in relation to both applications, that is the application for renewal of the interim SOPO, which was the primary position of the pursuer and also their motion for an interim SOPO in terms of the main application, which represented the secondary position of the pursuer. 

[6]        At the earlier hearing on 13 November 2013 when the application for renewal was presented the pursuer was represented by Mr McGillivray and the defender by Mr Sandeman.  On behalf of the pursuer it was recognised that the six month period of the SOPO had lapsed the order having come to an end by 17 October 2013.  It was submitted that it was appropriate in the circumstances to present a fresh summary application for renewal of the interim SOPO and that that was so by virtue of the provisions of section 112(1)(f) of the Sexual Offences Act 2003.  This was a UK statute and section 112 applied sections 104 and 106 to 109 to Scotland with certain modifications.  Mr McGillivray submitted that the application for renewal need not be made prior to the lapse of an interim order.  In support of his application he referred to the averments in the application for renewal.  These appear to be largely the same as, although more detailed than, the averments in Article 2 of the main application. Article 3 of the renewal application refers to the defender’s conviction on 5 April 2012 of contraventions of sections 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 and section 7(1) of the Sexual Offences (Scotland) Act 2009.  The former offence involved the defender using lewd and libidinous practices towards a 15 year old female by sending her indecent communications of a sexual nature.  The latter offence involved the defender communicating indecently with persons unknown on an online chat room by suggesting to said persons that they make sexual advances to a child.  Article 4 makes reference to subsequent allegations in relation to the sending of messages of a sexual nature using the Facebook website to vulnerable females which allegations were due for trial at this court on 13 January 2014.  In addition it is alleged that the defender has breached bail conditions in relation to that case, the conditions being firstly that he would not have unsupervised contact with any child under the age of 16 and secondly that he would not access the internet except for employment purposes.  That was also due for trial on 13 January 2014.  It is also averred that when arrested on suspicion of breaching bail the defender resisted arrest, another matter that was due for trial on the said date.  Two other allegations that the defender breached bail by contacting vulnerable females are referred to but in relation to those it appears that no further action was taken.  Article 5 of condescendence contains averments about alleged conduct prior to the conviction on 5 April 2012 and in particular that on a number of occasions the defender came to the attention of the police for indecent conduct towards females using the internet between 2009 and 2011.  I do not consider it necessary to rehearse the details as will become clear.  Article 6 refers to discussions at a MAPPA Level 2 meeting on 19 February 2013 where it was unanimously agreed that the defender presented a high risk of causing serious sexual harm to children.  It was at this stage that it was decided that it would be proportionate to manage the risk posed by the defender by seeking a SOPO. The information about the meeting does not appear in the main application.  

[7]        However, as indicated, the information in the renewal application is much the same as that presented in the main application.  It is averred that the defender’s conduct since conviction gives reasonable cause to believe that the order sought is necessary for the purpose of protecting the public from sexual harm and that he has not been the subject of an interim SOPO since 17 October 2013.    

[8]        During submissions Mr McGillivray referred to the test for an interim SOPO in section 109(3) of the 2003 Act which provided the court may make such an order “if it considers it just to do so”. 

[9]        Mr Sandeman in reply similarly referred to the test for an interim SOPO.  He also referred to the provisions of section 112(1)(ea) to the effect that an application for an interim order is made by way of the main application.  His argument was therefore that the appropriate application was by way of motion in the main application.  As to the merits he submitted that the matters going to trial in January 2014 on indictment were as yet not established.  Further, he indicated that the matters referred to in article 5 of condescendence were denied and were not the subject of any conviction.  He confirmed that the defender was made the subject of probation order on 17 May 2012 as a result of the convictions.  That order which was for a period of 3 years contained conditions which sufficiently protected the public taken along with the bail conditions in relation to the pending indictment due for trial in January 2014. 

[10]      At the conclusion of submissions on that day I decided that the application be continued, to call along with the main application on 20 November 2013, so that I could be addressed on a competency of the application for renewal.  Also I requested that I be provided with a vouching of the present bail orders and the terms of the probation order, including the terms of the amendment to that order apparently made on 13 December 2012. As indicated, on 20 November the application along with the motion in the main application were both continued until 27 November to call before me. 

[11]      On 27 November 2013 Mr McGillivray reaffirmed his principal submission that a separate summary application was required for renewal and he founded once more on the provisions of section 112(1)(f) of the 2003 Act.  He also referred to the Oxford English Reference Dictionary (2^nd Edition) as to the definition of “renew”.  He referred to that part of the definition providing that the word means inter alia to “repeat or re-establish, resume after an interruption.”  He also referred to the judgment of Sheriff Principal Mhairi M Stephen and the case of The Chief Constable of the Police Service of Scotland v DJR and DDS dated 23 August 2013.  He referred to the Sheriff Principal’s reasoning at paragraph 31 to the effect that section 112(1)(f) did not require that a separate summary application should be made.  He respectfully submitted that the Sheriff Principal was not correct in that interpretation.  However he also referred to her reasoning at paragraph 34 in relation to the meaning of “renewal” with which he agreed.  Reference is made in that passage to a similar dictionary definition.  While that case dealt with a continuation of an unexpired interim order, the Sheriff Principal recognised that an interim SOPO may come to an end where the fixed period expires but that there may be a need for “renewal”.  So, submitted Mr McGillivray, a renewal was competent where an interim order had come to an end and it was sought to re-establish it.  He also made an alternative submission.  His secondary position was that if he was wrong, then an interim order could be made in terms of his motion in the main application.  As indicated earlier, the terms of that motion sought an order in the same terms to the one sought in the application for renewal.  As to the need for such an order, he recognised that existence of the conditions in the probation order as amended and also the bail conditions.  These had now been produced.  The probation order, aside from the normal conditions, contained additional conditions, in summary:  (1) that the defender was to have no supervised or unsupervised contact with anyone under the age of 17 years old unless authorised;  (2) that the defender must reside in accommodation approved by the supervising officer;  (3) that the defender was forbidden from entering schools, nurseries, parks, leisure centres or any other places where children regularly congregate without express permission from his supervising officer.  Those conditions were varied to include two further conditions, namely:  (1) that the defender was to have no unsupervised access to the internet unless authorised by his supervising officer;  and (2) the defender required to allow the police to visually inspect and/or electronically analyse any telecommunication equipment, including computers, mobile phones etc found to be in his possession.  A copy of the indictment and attached bail conditions were also produced.  Aside from the standard conditions, the defender was prohibited from contacting certain named person and further was not to have any unsupervised contact with any child under the age of 16 years old.  In addition he was not to have access to the internet except for employment purposes.  Notwithstanding the extent of those conditions, Mr McGillivray submitted that an interim SOPO would have more teeth in that the police could arrest the defender if they suspected a breach.  Immediate action could be taken to protect the public.  This was to be contrasted with the procedure for breach of probation which would require a a breach procedure that lacked the same immediate protection.  It was submitted that an interim SOPO was still merited.  There was no change in the risk since the order was granted in April 2013.  As far as the main application was concerned, it was submitted that this could be deferred until a date following the trial in January 2013. An order for six months was sought.

[12]      On this occasion Mr Travers appeared for the defender in the absence of Mr Sandeman.  As to the competency point, he submitted that the provisions of section 112(1)(f) did not require that a separate summary application be made for the purpose of renewing an order and founded on the passage by Sheriff Principal Stephen at paragraph 31 in her judgment.  His primary position was that the fresh application for an interim order was required.  He submitted however that that application should be refused.  He referred to the existing protection offered by the conditions of probation and bail.  He argued that an order was not necessary to protect the public from serious sexual harm from the defender as envisaged by section 104 of the Act, nor was such an order “just” in the circumstances (section 109(3)). 

[13]      I was made aware that decisions in The Chief Constable of the Police Service of Scotland v DJR and DDS had been appealed to the Inner House of the Court of Session and that it was due to be heard on19 December 2013. This decision was relevant to the competency point. In the course of preparing my decision, I came to the view that, if the appeal was heard on that day and that if there was to be an imminent decision, I would wait until it was issued before issuing my decision in this case. It transpired that the Inner House issued its decision on 17 January 2013. I refer to that below.  It should also be noted that the criminal case due to be heard in the sitting of 13 January 2014 has been postponed until the sitting of 7 April 2014, the same bail conditions remaining in force.

Discussion

[14]      As to the competency of the renewal application, this turns on the interpretation of section 112(1) of the 2003 Act and in particular what that statute requires in the form of a court application.  This now dealt with in the decision of the Inner House in DJR and DDS. The opinion of the Court was delivered by the Lord Justice Clerk, in which he stated:

“[21] An application for variation, renewal or discharge of a civil SOPO or an interim SOPO may be made to a different sheriff from that before whom the main application is made. There will therefore be cases in which the sheriff renewing a SOPO will be doing so in a different sheriffdom. In that situation a new initiating writ will be required in that court. The legislation covers that situation by prescribing that it should be by way of summary application. However, that is not to say that every application requires a new process. Where there is already a process in which an interim order has been craved, the existence of that crave ought to form a sufficient basis for any application to renew an existing interim order which is about to expire or has already done so [my emphasis].

[22] The court agrees with the Sheriff and Sheriff Principal that an interpretation that requires separate summary applications, and related processes, would introduce a multiplicity of actions and complexity of procedure, which it is the purpose of summary application procedure to avoid. It should not lightly be assumed that Parliament so intended. The use in sub-section 112(1)(f) of the phrase "is made by summary application to the sheriff who made the order" should be understood to mean that the request for variation, renewal or discharge of an interim SOPO should be made within any summary application process subsisting in the relevant sheriffdom. Accordingly, where the application to vary, renew or discharge an interim SOPO is made in the same sheriffdom, no separate initiating writ is required [my emphasis].The existence of a crave for an interim order will, provided the crave itself is not expressly time limited, permit the sheriff to vary, renew or discharge it. However, that assumes that the crave for the SOPO contains all the elements required in the motion for any variation at the instance of the police and that the averments in the Writ, coupled with the formal information regarding the progress of the action, are sufficient to justify any variation or renewal. If they are not, it is likely that written amendment will be required; thus providing the offender with fair notice of what is being sought and the basis for it.”

[23] There is no distinction between "continuing" an interim SOPO and a renewal of it. The correct terminology, where it is determined that an interim SOPO is to continue in force beyond its expiry date or when an interim SOPO has expired but is to be revived, is renewal. Any interlocutor should reflect that.”

[15] From the foregoing, it is apparent that, in this case, a separate initiating writ is not required for an application for an interim SOPO. Although the interim order has lapsed, any application is to be regarded as one for “renewal” and should be made by motion. Accordingly, the summary application for renewal will be dismissed and the matter considered in the context of the motion in the main application.

[16]      As regards the merits of the application it is important to bear in mind the legal framework.  As has been pointed out, the test for an interim SOPO is set out in section 109(3).  The court may make an interim order “if it considers it just to do so”.  This is clearly in the nature of an exercise of the court’s discretion. It cannot however be seen in isolation.  It must be seen against the background of the statutory grounds for a SOPO in section 104 which refer to the necessity for an order for the purpose of protecting the public or any members of the public from serious sexual harm from the defender both in the context of a criminal court dealing with the matter and, as here, on application for an order by the police. This application in this case is founded upon the defender’s actings following conviction on 5 April 2012.  As such, it appears to be an application based on actings since the “appropriate date” by a “qualifying offender”, giving reasonable cause to believe that such an order is necessary (sections 104(1)(a), (4), (5)  and 106(5) and (8), as modified by section 112). It appears to me that one of the factors to consider in deciding whether it would be “just” to make an interim order is the strength of the case for a SOPO on averment and having regard to the available material. Further, it seems reasonable to assume that whether an order is just involves a consideration of not only the public interest but also the interests of the defender, and so the court needs to balance the need to protect the public from sexual harm against the freedom of the individual defender.

[17]      As indicated, the facts relied upon by the pursuer are much the same as those relied upon for the granting of the interim SOPO in April 2013. The actings relied upon are referred to in paragraph 6 above and I do not think it necessary to rehearse the details. The actings post-conviction were set out in Article 4 of the renewal application, being also part of the material in Article 2 of the main application. I do not consider the material which relates to pre-conviction matters to be relevant bearing in mind the statutory basis for the application. There appears to be a prima facie case for a SOPO based on the allegations, which are now encompassed within the charges on the Indictment, but it must be recognised that those allegations are as yet unproved. Regard must also be had, in judging the necessity for an interim order, to any other protection afforded to the public. In this respect, it is relevant to consider the conditions of bail in relation to the criminal case and the also the conditions of the probation order. While these were produced in the renewal application, it seems to me that they are nonetheless relevant to a motion for an interim order in the main application. The probation order, as amended, taken together with the bail conditions, provide similar protection prohibiting contact with young persons. There are also similar restrictions on internet access and, crucially, a condition to allow police access to equipment such as computers and mobile phones, which echoes one of the provisions of the interim order sought. It may be that the provisions are not as detailed as those sought in the interim order, but they do cover much of what is sought. Further, there is a well-established procedure for breach upon which a Sheriff may grant a warrant. Of course, the police can detain a person suspected of breaching a bail condition. The probation order is due to run until May 2015 and the bail conditions until April 2014.

Decision

[18] I consider that the necessity for an interim order for the protection of the public is lessoned given the other protection in place; and when balanced against the interests of the defender, I have come to the conclusion that it would not be just to grant the interim order. I have therefore refused the pursuer’s motion 7/3 of process.

[19] Had I granted the order, it would have been in the manner of a “renewal” for the reasons discussed above. Further, I would have had grave reservations in granting such an order for the period of 6 months requested given the following observations of the Lord Justice Clerk in DJR and DDS at paragraph [23]:

“It is particularly important that interlocutors granting or renewing interim SOPOs are clear in their terms, including the duration of the order. From the narrative of the procedure in these cases, it is not apparent that a suitable level of consistency was achieved at all times. The original interim SOPO and any renewal must be for a fixed period. The date on which the order is to expire must be specified. The period selected should normally reflect the time which it is reasonably predicted it will take for the SOPO itself to be determined. Given that the procedure is intended to be summary, this period should be relatively short and continuations in the process ought to be rare. Since in all cases the court must consider whether the period specified is just, it is not appropriate to make an interim order which has as its expiry date that of the determination of the main application even if the interim SOPO will, of course, expire upon that determination.”

In light of the foregoing, I would have required to be addressed on the length of the order in the context of the estimated length of the proceedings.

[20]      I have pronounced interlocutors reflecting the foregoing decisions and reserving all questions of expenses. I have appointed the application for renewal to a hearing on the issue of expenses. I have also appointed the main application for a hearing in order that further procedure may be determined. If the main application is to proceed, then there will no doubt require to be answers and adjustment, as appropriate, with a view to a hearing. While I have taken account of the material and productions in the renewal application for the purposes of the motion in the main application, the latter process will require to be updated with all relevant material.