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Scottish Sheriff Court Decisions |
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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Tayside Police v. Basterfield [2006] ScotSC 45 (03 September 2007) URL: http://www.bailii.org/scot/cases/ScotSC/2007/45.html |
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The Sheriff, having resumed
consideration of the cause, finds the following facts admitted or proved :-
1.
The Pursuer is Chief Constable of Tayside Police, the
police force of the administrative region of Tayside comprising the present
local government areas of Angus,
2.
Part of the area of the Pursuer's police force lies
within the Sheriffdom of Tayside Central and
3.
The Defender was born on
4.
Between 1989 and 2000 the Defender was convicted on
eight occasions of various offences in
5.
In particular, on
6.
On
7.
As a result of behaving in the foregoing manner, the
Defender appeared on summary complaint in
8.
The said offence constitutes an offence within
paragraph 60 of Schedule 3 of the Sexual Offences Act 2003.
9. As a result of said conviction, on
(a)
The Defender should attend any sexual offending
programme that his supervising officer
deems appropriate.
(b)
The Defender participates in any sexual offending
programme to a degree acceptable to his supervising officer.
(c)
The Defender is
not alone with or in the company of a lone female without her expressed
consent.
(d)
The Defender
does not take up employment, voluntary work, or any recreational activity
without notifying his supervising officer.
(e)
The Defender
should attend for any psychiatric or psychological assessment that his
supervising officer deems necessary or appropriate.
The order was and is subject to
regular review in terms of section 229A of the Criminal Procedure (
10. As at April
2007, the Defender has complied with the terms of said probation order.
11. Prior to
12. Following
the Defender being placed on the sex offenders register with effect from
13. Said risk
assessment has been reviewed by officers on an ongoing basis. The Defender has
always been assessed as constituting at least a high risk of reoffending. On
14. On 19th
and
15. In early
September 2005 Maria Dominguez, a Spanish national, came to
16. In the
early evening of
17. M/s
Dominguez started to run from the Defender in
18. M/s Dominguez
then walked along Skinnergate, and into
19. A short
time later, M/s Dominguez, unable to summon her friend, walked along High
Street, Watergate, and
20. As a result
of the Defender's behaviour towards M/s Dominguez on
21. At the time
of acting in the foregoing manner, the Defender was on bail, the order having
been imposed on
22. As a result
of behaving in the foregoing manner towards M/s Dominguez, the Defender
appeared on summary complaint in
23. As a result
of the said convictions and the resultant penalties imposed, the Defender will
remain subject to registration in terms of section 92(2) of the Sexual Offences
Act 2003 until 2013.
24. From the
summer of 2005 until May 2006 the Defender was a member of Perthshire Rugby
Club. His nickname within the club was 'Crazy Rob.' He often attended Bells
Sports Centre,
25. The
Defender regularly had hard core pornographic publications in his possession
when attending rugby training or travelling to rugby matches with the club. At
times he would discuss female chat lines when in the company of members of the
club.
26. The content
of chat amongst members of a rugby club is often boisterous in nature. It on
occasions has a sexual content.
27. On one
occasion in the late summer/early autumn of 2005, the Defender forgot his rugby
kit when he appeared at training. He accordingly trained in his underwear.
Training took place on the North Inch which is a public park.
28. In April
2006, the Defender approached a number of single females leaving Bells Sports
Centre and inquired whether they were going to Sportsters,
a public house in
29. Towards the
end of April 2006, the Defender attended the annual Perthshire Rugby Club
dinner at the Queen's Hotel,
30. For a
period the Defender became a member of the congregation of Letham
and St Mark's Church in
31. The Defender
attended Gaelic classes held in
32. On
33. In
34. The
Defender suffers from a schizotypo personality
disorder. This disorder tends to be life long. A person suffering from such a
disorder often acts in an odd and eccentric manner. The Defender tends not to
abide by normal social boundaries and misinterprets social cues. He tends to be
unable to understand the usual social norms of engagement with females. He has
difficulty understanding why he was convicted of the criminal charges as a
result of the incidents involving M/s Kiero and M/s
Dominguez. The Defender generally minimises the character of his behaviour. He
lacks empathy with his victims. He displays strong psychopathic trends. As a
result the Defender constitutes a danger to others, particularly females.
35. This disorder does not respond to any anti
psychotic medication. Treatment programmes with cognitive or psychotherapeutic
input have minimal success.
36. The
Defender's intention in acting in the way he has is to establish a relationship
with a female.
37. As a result
of the disorder from which the Defender suffers, he is very likely to commit a
further sexual offence or an offence with a significant sexual element. In that
event, serious sexual harm is likely to be caused to a member of the public,
particularly a female.
38. As a result
of his disorder and the resultant tendency for misinterpretation on the part of
the Defender, the most effective prohibitions in any Sexual Offences Prevention
Order are those which are clear and unambiguous and thus easily understood by
the Defender. Such an order would materially reduce the likelihood of the
Defender offending in a manner similar to that displayed in the incidents involving
M/s Keiro and M/s Dominguez. As a result such an
order would materially reduce the risk of serious sexual harm to a member of
the public, particularly a female member of the public.
39. On
40. At the
conclusion of this meeting all in attendance were agreed that the Defender
constituted an imminent risk of committing a sexual offence against a lone
female causing serious physical impact as well as associated mental trauma. It
was further agreed at said meeting that an application be made in terms of
section 105 of the Sexual Offences Act 2003 for a Sexual Offences Prevention
Order. The terms of the order to be sought in such an application were to
prohibit the Defender for a period of thirty years from
(a)
being alone or remaining in the company of any lone
female;
(b)
approaching, accosting, following, or communicating in
person with any lone female;
(c)
causing or permitting any lone female to enter or
remain in any place at which the Defender may reside or any other dwelling
house occupied by him whether temporarily or permanently;
(d)
permitting any lone female from occupying any vehicle
owned or used by the Defender or a vehicle in which the Defender is a passenger
other than a public services vehicle;
(e)
engaging in any
form of employment, self employment, or voluntary activities that would permit
the Defender to have unsupervised access or control of any lone female.
41. As a result
of his convictions, the Defender's details are recorded on the Violent and Sex
Offenders' Register (VISOR). On the expiry of the period during which these
details are on VISOR, 2013 in the case of the Defender, police officers will
continue to monitor the Defender in the event that he is considered by them to
constitute at least a high risk to the public.
42. In the
event of the Defender breaching either the probation order or any sexual offences prevention
order, the steps taken in respect of any breach of the latter order are more
immediate.
FINDS IN FACT AND LAW
1. The Defender has been convicted of an offence in terms section 105(1)(a)(i) of the Sexual Offences Act 2003
2. Since the date of said conviction, the Defender has behaved in such a way as to give the Pursuer reasonable cause to believe that an order in terms of section 105(1) of the Sexual Offences Act 2003 is necessary.
3. The Defender is likely to commit a further offence set out in Schedule 3 of the Sexual Offences Act 2003.
4. As a result of commission of such a further offence by the Defender, a member of the public is likely to suffer serious sexual harm.
FINDS IN LAW
1 The granting of an order in terms of section 105(1) of the Sexual Offences Act 2003 is necessary to protect members of the public from suffering serious sexual harm as a result of the actions of the Defender.
2 The granting of an order in terms of section 105(1) of the Sexual Offences Act 2003 does not contravene the Defender's rights in terms of the European Convention of Human Rights.
3 The granting of an order in terms of section 105(1) of the Sexual Offences Act 2003 is lawful.
THEREFORE
NOTE
In this hearing for an order in
terms of section 105(1) of the Sexual Offences Act 2003, the Pursuer was represented
by Mr Smith, advocate, the Defender by Mr MacDonald, advocate. Evidence was led
on 26th, 27th, and 28th February 2007.
Although both parties produced very helpful and extensive written submissions,
I heard counsel for both parties expand these submissions on
The Pursuer led evidence from
Detective Constables Ross Fitzgerald and Paul McGranaghan,
Kevin Brown, Victoria Keiro, Andrew Flavell, Doctor Basel Switzer, and Detective Sergeant
Graham Young. The Defender neither gave evidence not called anyone as a
witness. The parties further agreed certain matters in two joint minutes of
admissions.
Dealing firstly with evidential
matters, there was generally no great dispute as to the evidence. There were
disputes as to the inferences which could be drawn from the evidence led and I
propose to deal with these matters under the headings in which they are
relevant. I shall likewise comment on any evidence insofar as it is relevant at
those points.
Turning to the relevant
legislation, there was no dispute between counsel that the Defender had been
convicted of an offence which fell within the ambit of section 105(1)(a)(i) of the Sexual Offences Act
2003, namely the conviction involving M/s Kiero dated
The first issue is whether there is
evidence, which if accepted, could satisfy me that the terms of section 105(3)(a) of the Act are met. In terms of that subsection 'the person's behaviour since the conviction ..... 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 person.' In terms of section 106(3) "Protecting the
public or any particular members of the public from serious sexual harm from
the defendant" means protecting the public in the
In short, before I can
even consider whether an order can be made, the behaviour of the Defender since
In submitting that
there was sufficient evidence counsel for the Pursuer referred me to R v Rampley
2006 EWCA Crim 2203. In that decision Mr Justice Gray
compared the terms of section 224(3) of the Criminal Justice Act 2003 which
referred to 'serious harm' meaning 'death or serious personal injury whether
physical or psychological' with the provisions of the Sexual Offences Act 2003
referred to previously. It was noted that there was a qualitative difference
between the concepts of 'injury' and 'harm' and there was a distinction between
the two, albeit fine. In that case the Appellant had been convicted of touching
the bottom of a fifteen year old girl on the platform of a railway station. In
passing, I would further observe that in R
v Michael H 2005 ECWA Crim 3037, an order was
made in relation to an accused who had made an indecent photographs or psuedo photographs. No submission was made to matters
raised by counsel for the Defender in these decisions. There does not appear to
be any suggestion that the victims in fact suffered injury or harm as a result
of the offences.
In my opinion reference in section
106(3) to serious harm as opposed to injury does denote a difference. There is
a distinction, albeit fine, between harm and injury. It seems to me that harm
is wider. I do not consider that harm is restricted to a diagnosable condition.
Further the aim of the legislation is protection. It seems to me that that aim
would be seriously compromised if it was necessary to establish that a past
victim had suffered a diagnosable condition. There might be numerous reasons
why such evidence relating to a past victim was unavailable. It might be that
the victim had not sought medical help. That would not necessarily mean that
serious harm had not been caused. The victim might prefer to deal with the
matter on her own without the need of counselling or treatment. The victim
might be no longer available to give evidence for a number of reasons. As a
result no medical information relating to that victim might be available. I
cannot accept that there is no room in the statutory provision for the use of
foresight insofar as serious sexual harm is concerned. To require the evidence
suggested by Mr MacDonald seems to me to almost be equivalent to the 'every dog
is allowed one bite' principle! This seems to me inconsistent with the
provision's aim of protection. Accordingly, I reject the submission of Mr
MacDonald.
In any event, in terms of sections
105(3)(a) and 106(3) the court's attention is directed
to the future. The order is to protect members of the public from serious
sexual harm from a person such as the Defender committing an offence of the
character of those set out in schedule 3 of the Sexual Offences Act 2003. In my
opinion the court can look at the nature of the past events and their effect on
the victims and conclude that serious sexual harm would be suffered by a victim
in the event of the commission of such an offence by a person such as the
Defender. These previous actings are clearly relevant
but not, in my view, determinative. In the present case M/s Keiro
talked of being hysterical as a result of the incident. She said she did not
like to go out on her own and did not answer the door unless she knew who was
expected. She is in her mid twenties. It seems to me that one would not
normally expect such a reaction from a person of her age. Her evidence was not
challenged. Likewise, M/s Dominguez indicated in her statement that she was
terrified of the Defender and as a result of his actings
she abandoned her course and left
The next matter which I wish to
deal with is counsel for the Defender's submission that the second conviction
cannot be taken into account in determining the Defender's behaviour following
the qualifying conviction, namely that of
Still on the matter of behaviour, I
wish to deal with the instances of behaviour by the Defender which I have been
prepared to accept. This largely relates to the contents of the Scottish
Intelligence Database, Pursuer's production number 5. Counsel for the Defender
was critical of the entry relating to an incident on
Dealing with the incident on
I was prepared to accept the
entries of 20th and
Turning to the behaviour at the
rugby club, I do accept the terms of the relevant entry. I do so for a number
of reasons. Firstly, it is similar to aspects of the behaviour involved in the
offence against M/s Dominguez. Further, the entry was consistent with the
evidence of Mr Kevin Brown, who played rugby and spoke to the actions of the
Defender in the clubhouse. There was nothing in his evidence or the manner in
which he gave evidence which caused me to doubt its content. In addition, there
was sufficient concern for the actions of the Defender that informal
arrangements were in fact set up to chaperone single females leaving the
clubhouse if the Defender was present. In short, the entry in the database was
consistent with the other evidence concerning the Defender's behaviour in the
clubhouse.
In conclusion, having regard to the
evidence which I have accepted, I am satisfied that the Defender has, since the
date of the qualifying conviction, behaved in such a way that one could
anticipate his acting in such a way that his behaviour would constitute an
offence specified in Schedule 3 of the Sexual Offences Act. As I have already
noted, in that event one could anticipate that the public or particular members
of the public could sustain the relevant harm.
The next issue to determine is the
crucial one of necessity. I shall deal with this in two stages. I shall firstly
consider whether any Sexual Offences Prevention Order is necessary, before
moving on to consider the terms of the order sought by the Pursuer from a
number of view points.
The order sought in terms of
section 105 of the Sexual Offences Act 2003 is a prohibitory
one. It firstly seeks to prevent the Defender from doing certain things he
would normally be entirely within his rights to do, namely to be alone and
remain in the company of a lone female, communicate with a lone female, allow a
lone female to enter and remain in his place of residence, and likewise a vehicle
he is driving or in which he is a passenger. If the female concerned did not
consent to the Defender's presence or actions in those instances, then I can
certainly envisage that an offence might be committed on a number of occasions.
The fact remains that this prohibition prevents the Defender from acting in an
otherwise unobjectionable manner. In addition, the order seeks to prevent the
Defender approaching, communicating with, accosting, or following a lone
female. This arguably seeks to prevent the Defender from acting in that way
with the general intention of prohibiting the Defender from, at very least,
being a nuisance to a female. I can foresee difficulties with the use of
'approach' and 'follow' but that is for later. However, this prohibition is
arguably aimed at behaviour on the part of the Defender in which he should not
engage.
In the context of personal actions
there have been a number of instances of prior legislation in which orders can
be sought to prohibit a person's actions where such an order is considered
necessary. I shall turn to these as one of the tests for the granting of the
order now sought by the Pursuer is that the order is necessary.
In terms of section 4(2) of the
Matrimonial Homes (Family Protection)(Scotland) Act 1981 an exclusion order
could be granted if necessary for the protection of the applicant from any
conduct, actual or threatened, of the other spouse. There are qualifications to
this in section 4(3) of that act. In terms of section 1(2)(c)
of the Protection from Abuse (
The issue of necessity has been
looked at in relation to the legislation to which I have referred in a number
of decisions. In the interpretation of
sections 4(2) of the Matrimonial Homes (Family Protection)(Scotland) Act 1981
Lord Justice Clerk Ross in McCafferty v McCafferty 1986 SLT 650 at 652L noted that the test of
necessity is a high or rigid one. The availability and effectiveness of
alternative remedies such interdict had to be considered but was not
conclusive. In Ward v Ward 1983 SLT
472 the availability of interdict was not so significant in face of a party who
had embarked on a drink related course of conduct over a long period. In the
circumstances in that case, it was unlikely that any other remedy apart from an
exclusion order would provide the necessary protection. A similar view was
taken in relation to closure orders in terms of section 30 of the Antisocial
Behaviour etc (
It may be that in practice these
apparent differences in interpretation are not significant. However, I consider
that the interpretation of necessity in terms of section 4(2) of the 1981 and
section 30 closure orders in terms of the 2004 Act is more persuasive in
interpreting the legislation in this case. Applications for antisocial
behaviour orders normally seek to prohibit behaviour which constitutes a
nuisance and thus should not normally be undertaken in living within boundaries
society considers acceptable. In contrast, an order sought in terms of section
4(2) of the 1981, if granted, prevents a person from exercising a right vested
in him or her either by heritable title, lease, or section 1 of that
legislation. Likewise a closure order prevents persons from occupying premises
which but for the order they would be entitled to do. Similarly, as I have
already noted, the present application largely seeks to prevent the Defender
from doing what he would normally be perfectly entitled to do. Logically, it
further seems to me that the intended purpose of an order in terms of section
105(1) of the 2003 Act will normally be of that nature. If it was only to
prohibit a person from breaching the existing criminal law, then it is
questionable what real purpose such orders would serve as any breach of the
criminal law would carry a penalty already. The incentive for a person to
behave exists already.
Counsel for both parties further
referred me to a considerable number of English decisions, some of which give
indications as to factors to be considered in deciding whether the test of
necessity is met. By reference to the decision in R v Halloren 2004 EWCA Crim 233 and R v D
2006 1WLR 1088, counsel for the parties accepted that necessity did not equate
with desirability, appropriateness, or usefulness. The court should give
consideration as to what other measures are in place in respect of offender - R v Ali Badiel
2005 EWCA Crim 970. Further, regard should be had to
the frequency of the behaviour and when it occurred - R v G 2006 EWCA Crim 1994.
Looking at the facts relevant to
the issue of necessity, the Defender in a little under
sixteen months committed two similar offences involving following lone females
who were in their twenties. The Defender was made subject of the requirement to
register in terms of the Sexual Offences Act 2003 in respect of both offences.
Accordingly the sheriff considered that there was a significant sexual aspect
to the Defender's behaviour in respect of these offences. This assessment of
his behaviour was not challenged by the Defender. The second offence further
was committed whilst the Defender was subject to bail and also ordered to be of
good behaviour. He accordingly committed the second offence whilst being in a position
of trust. Not only did he breach his position of trust by committing the second
offence but also the second offence was of a similar character to the first.
Two months later, in April 2006 he approached single females in the manner set
out in findings 28 and 29. Whilst the ages of the females concerned were not
mentioned in evidence, I suspect that they were of a similar age to M/s Keiro and M/s Dominguez. Mr Brown, who was aged twenty
four, at times described girls in the club house being uncomfortable when the
Defender spoke to them inquiring where they were going and could they meet up.
He talked about the girls' partners. Bearing in mind the average age of rugby
players, it seems to me safe to assume that the females concerned were in their
twenties.
In the taxi incident, the female
was described as shocked. She screamed when the Defender was in the taxi and
was cowering by the door. Although the age of the female was not specified, she
was constantly described by Mr Flavell as 'the girl.'
He was forty years of age and I infer from his description of her that she was
younger than he was. I have to say that Mr Flavell
was a very impressive witness. He was very straightforward and I had no
hesitation in accepting his account. Again I consider I
safe to assume that the female concerned was likely to be in her twenties. At
the time, the Defender was again in a position of trust for the reasons already
noted.
In addition to these matters, there
is the Defender's other behaviour. This varies from worrying, against the
background of the foregoing incidents, to somewhat bizarre. In the former
category are the examples of the Defender's behaviour with females at the rugby
club and the reasons for his participating in various activities. The
Defender's late night forays on the North Inch and the training incident fall
into the latter category. The writings in the notebook recovered by the police
from the Defender's premises and the Defender's use of pornography are perhaps
on their own of no particular significance. However, when considered in
combination with the other matters, it seems to me that there are grounds for
concern arising from the Defender's behaviour.
This concern is heightened when
consideration is given to the evidence of Doctor Switzer. The Defender is
described as unable to understand the usual social norms of engagement with
females and has difficulty in understanding why he was prosecuted for the
incidents involving M/s Keiro and M/s Dominguez. He
is considered a danger by the psychiatrist and his condition is not able to be
treated. In those circumstances, an analogy can be drawn with the observations
in Ward v Ward in that, as alcohol
made the Defender in that case unpredictable, so the Defender's medical
condition in the present case has the same potential result.
In light of all these circumstances
I consider that in principle a Sexual Offences Prevention Order is necessary.
In coming to this conclusion, I, however, place little weight on the decision
reached by those attending the meeting on
Further, it seems to me that the
goal of the meeting was very much the protection of the public without any real
consideration of the Defender's rights. I formed the impression that Detective
Sergeant Young largely conceded this to be the case. Further, a perusal of the
terms of the order which they agreed should be applied for as opposed to the
one now being sought by the Pursuer gives as good an indication as is needed to
confirm that this was the case. There was no allowance for consent on the part
of any lone female in the former. That proposed prohibition was so wide that
the Defender would have no opportunity to establish any relationship with any
female. The duration of the proposed prohibition was thirty years, until the
Defender was in his mid sixties. This decision was reached against a background
of two offences prosecuted under summary procedure by the appropriate
authorities. It was said to be reached by Detective Sergeant Young with the
meeting considering the terms of the order sought to be as narrow as was
necessary to deal with the perceived risk. If this was indeed the case, then it
seems to me that the meeting was at least in part influenced by the reaction
sexual offences of any character cause generally these days, such reaction at
times displaying limited calm consideration of all the relevant issues and
circumstances.
I also place little weight on the
risk assessments carried out by Detective Constables and McGranaghan.
With respect to the officers, whilst their completion of a risk assessment is a
necessary precursor to the present application, neither officer could be
described as experienced in the field. In addition, neither
had any psychiatric or psychological qualifications.
In considering whether in principle
a Sexual Offences Prevention Order is necessary, I have not taken account of
the Defender being the subject of a probation order. This seems to me to be
relevant when considering whether the order actually sought in this action by
the Pursuer is appropriate and it is to this issue that I now turn. There are a
number of issues which arise under this heading.
The first is whether the order as
sought is sufficiently intelligible and precise. The order seeks to prohibit
the Defender for a period of ten years from :-
(i) Being alone with or remaining in the company of
any lone female, except with her expressed consent;
(ii) Approaching, accosting,
following, or communicating in person with any lone female, except with her
expressed consent;
(iii) Causing or permitting any
lone female, except with her expressed consent, to enter or remain in any place
at which the Defender may reside or any other dwelling house occupied by him,
whether temporarily or permanently;
(iv)
Permitting any lone female, except with her expressed consent, from
occupying any vehicle owned or used by the Defender or a vehicle in which the
Defender is a passenger other than a public services vehicle.
These prohibitions do not extend to
an initial approach by the Defender to any lone female and communication
between the Defender and any lone female for the sole purpose of the Defender
seeking her consent to be within her company. 'Initial' means first. Where,
upon this initial approach having been made by the Defender, any lone female
does not give her expressed consent for the Defender to remain within her
company, the general prohibitions apply.
It is a well established principle
regarding court orders which prohibit a party acting in a certain manner that
they are firstly clear. In referring to the common law remedy of interdict H
Burn-Murdoch in Interdict in the Law of
Scotland at paragraph 108 spoke of it being 'a fundamental principle that
an order of the Court forbidding or commanding, under penal consequences, must
not be vague so as to leave a respondent in doubt as to what he may do or must
do.' Reference was made to the dicta of Lord Adam in Cairns v Lee 1892 20R 16 at 20 in which his Lordship noted that the
prayer of the petition for interdict 'must have language that is precise and
definite, just as the interlocutor following upon it must be precise and
definite, so that a respondent may know at once when he is doing anything that
can be construed to be a breach of interdict.' It seems to me that the
principle to which I have referred is of greater significance when regard is
had to the potential penalty for breach of the order now sought. An allegation
of breach of interdict can only be enforced by a separate civil process. On the
other hand, the maximum penalty for breaching a Sexual Offence Prevention Order
is five years imprisonment following a criminal prosecution. Further, whilst
the former order will normally prohibit the person subject to the interdict
from acting in a certain way towards a named person or persons, the latter
order will generally prohibit actings against at
least a section of the public. Thus the prohibition in the latter is normally
wider.
This principle to which I have
referred has been adopted by the judiciary in
A further another reason for precision
is identified by Lord Bingham in B v
The first thing I would observe
about the order sought is that, as a whole, it can hardly be described as able
to be instantly remembered. On first reading, with the exception of the phrase
'except with her expressed consent' paragraph (i) prima facie might seem easily
understood. It might be suggested that 'being alone with' a person must
necessarily include 'remaining in' that person's company but that might be
considered pedantic. However, on further consideration, has this part of the
proposed order the requisite clarity? When is a female on her
own? A male and female are sitting on their own at separate tables and
are the only customers in a restaurant or bar. Are they alone in the restaurant
or bar? This might be considered too esoteric but it is perhaps worthwhile to
bear in mind the terms of one entry in the Scottish Intelligence Database, the
fifth production in the Pursuer's Inventory, dealing with an alleged incident
on
Turning to paragraph (ii) what is
meant by 'approach.' If the Defender walks towards a lone female walking in the
other direction in the street he is approaching her. If the Defender has no
intention of engaging in conversation with her or being in her company, then,
consent plays no part. The only approach permitted is for the sole purpose of
ascertaining her consent in terms of the 'consent' qualification to the order
sought. Accordingly, even if they pass without exchanging a word, he may have
still approached her without her expressed consent and the qualification does
not apply. If the Defender simply asked a female something as innocuous as
whether a bus would take him to a particular destination, again consent would
play no part. He has communicated with her. At first sight he is in breach of
the order if the one sought was granted unless he firstly asks the female if
she consents to his being in her company whilst he asks her his question.
Further, the proposed order sought
refers to 'communicating in person.' In the evidence of Detective Sergeant
Young, both the witness and counsel seemed to suggest that this phrase would
only cover face to face communication. It would not cover communication by any
other means. Does 'communicating in person' really exclude a telephone call
between the Defender and a lone female? I personally have my doubts.
Again, does 'follow' require an
intention on the part of a person so acting? One definition of 'follow' is
simply 'to go or come after in the same direction.' This seems simply a factual
matter. Is the person as a matter of fact going or coming after a person in the
same direction? Again this may seem to be an exercise in legal nit picking but
this seems to me justified in light of the dicta
referred to and the consequences of the order being breached. I would also
comment that I have difficulty with the concept of accosting a person
consensually!
Moving to paragraph (iii), I would
firstly question why the phrase 'whether temporarily or permanently' is
required. It seems to me that either a property is occupied by a person at a
particular time or is not. The last four words only add an element of doubt and
are superfluous to requirements. However, does the phrase 'in any place at
which the Defender may reside' assist? On one reading of this phrase, the
Defender is prohibited from allowing a lone female to enter or remain in his
place of residence whether or not he is actually in the property at the
material time. Would this prohibit him from renting a property to a lone
female, the property having been his place of residence?
Turning to paragraph (iv) the prohibition against permitting a lone female from
occupying any vehicle owned by the Defender ex
facie would prohibit a lone female driving or being a passenger in a car
owned by the Defender even although he was not in the vehicle at the time.
Further, by reference to paragraph (i) which
prohibition has priority in the event of a situation in which the two are
conflicting? If the Defender and a lone female are on a public services
vehicle, then the Defender may not be in breach of paragraph (iv). He may however be alone with her and thus potentially
breach the terms of paragraph (i). Quid juris?
This again highlights the issue when is a female a lone female? If only the
Defender and the female are on the public services vehicle, one presumes there is still a driver and perhaps a conductor. The consent
qualification does not, in my opinion, assist. The Defender is entitled to know
in precisely which situations he requires to seek the consent of a female for
the purposes of the order.
The issue of clarity is not
assisted when one looks at the qualification regarding consent. I have already
commented about 'accosting' consensually. An initial approach is permitted for
the sole purpose of the Defender seeking consent. The Defender however can
approach or follow a lone female on one occasion for that purpose. He can only
ascertain whether she consents to his approaching or following her if he
actually catches up with the female concerned and communicates with her. What
constitutes an initial approach? How long does the Defender have to ascertain
whether the lone female will or will not consent for the Defender to remain in
her company? Does he have to seek her consent immediately? I refer to the
scenario of the waiting room or park bench. What does expressed consent entail?
Can it be constituted by actions or simply words? It seems to me that expressed
consent may be different from express consent. To give her consent, does the
female require to know who the Defender is and, in particular, his history? It
does seem to me that his identity and history would be material factors for
consideration by a lone female. If the Defender does not get the expressed consent
from the female, can he approach her again after a passage of time has elapsed
or in the event of a change in circumstances?
The issue of clarity is not simply
to be examined from the perspective of a person who is subject to the order. As is noted by Lord Bingham in B
v
Accordingly, in light of this
cultural atmosphere which surrounds persons acting in a manner similar to the
Defender, it seems to me equally essential that the authorities entrusted to
police such an order know precisely what persons such as the Defender can and
cannot do. Simply leaving it for the operation of some 'well, of course, it
doesn't cover that' interpretation will not do. Interpretation of this type of
order cannot be left to chance in light of the potential consequences. I have
already indicated a problem which could arise in interpreting 'communicating in
person.' Further, as Detective Sergeant Young conceded, if a police officer
noted the Defender in the company of a lone female, he would immediately have a
suspicion that the order was being breached. He hoped any officer in that
situation would investigate. The impression I gained was that this would be
expected even if there was nothing per se
concerning about the situation apart from the two persons being in each other's
company. The greater the dubiety about the order, the greater opportunity there
is for this to occur. If the officer is not satisfied following his
investigation, then it was anticipated that the Defender would be arrested.
Whilst still on the issue of
clarity and purely as a comparative exercise, it is worthwhile considering the
terms of the orders sought in the English authorities to which I was referred
by counsel. In all the terms of the orders sought seem to me to be far clearer
than the one presently sought. Even in
There is one further issue
regarding clarity. As Lord Bingham remarked 'the order should be expressed in
simple terms, easily understood by those who, like the appellant, are not very
bright.' Doctor Switzer observed that because of the nature of the Defender's
condition, the order needed to be very plain, black and white, concrete, with no shades of grey to avoid misinterpretation.
He gave this response in answer to a question that the order required to be
straightforward, basically that the Defender did not go near a lone female. The
greater the dubiety, the greater opportunity for misinterpretation which, as
Doctor Switzer observed, may not be deliberate.
Having considered issues of clarity
which the terms of the order sought raises, I now wish to turn to the issue of
whether the terms of the order are proportionate. In terms of section 107(2) of
the Sexual Offences Act 2003, a sexual offences prevention order may only
include such prohibitions as are necessary for the protection of the public
from serious sexual harm. This has been interpreted in
Applying these principles to the
order sought by the Pursuer, I firstly consider that paragraphs (iii) and (iv) are unnecessary. I firstly refer to the observations I
made earlier to these provisions. In light of these previous observations, I
consider certain parts of paragraph (iii) and (iv) are
wider than necessary and indeed are superfluous. Further, the terms of
paragraph (iv) seem to me to be in conflict with the
those of paragraph (i). However, I cannot see how the
provisions of paragraphs (iii) or (iv) add anything to
paragraph (i). If a person causes and permits any
lone female to enter a property or vehicle, assuming the Defender is present,
then the Defender is alone with that person.
Turning to paragraph (i) again for reasons I have already given, I do not
consider that these terms have sufficient clarity. Further, if 'being alone
with or remaining' covers the scenarios to which I referred, and I see no
logical reason why that phrase does not, I consider that the terms are too wide
in light of all the circumstances including the behaviour of the Defender.
In rejecting paragraph (i), it could be suggested that paragraphs (iii) and (iv), albeit amended to take account of my previous
observations, should be part of any order. There are, however, a number of
problems. The Defender has not been involved in an incident in which he has
been alone in a vehicle with a female. The taxi driver was in the cab.
Likewise, if he was on the same bus as M/s Keiro, the
driver at least was aboard. The same applies in respect of a place of
residence. Further, if there was no reference to consent, the prohibition would
be far too wide. The Defender would be prohibited from being in the company of
a female in those scenarios even if she consented. Reference to consent,
however, raises the problems already mentioned.
Turning to paragraph (ii) again for
reasons already given, I do not consider the words 'approaching', or
'communicating' give the provision sufficient clarity. Further, again looking
at the meaning of both words, I consider that the terms cover such a range of
circumstances that they are too wide. The same criticisms can be made of
'follow.' Even if it is for the moment accepted that for the Defender to follow
a lone female as envisaged by the order, he must have that intention,
that does not seem to me to assist. Whilst the Defender may know when he
is following a lone female, can a person who is policing the order know this?
The Defender might be intentionally following a lone female from a distance in
the
This then leaves the Pursuer with
'accost'. Before I turn to consider the use of that word however, I wish to
address issues regarding bail and also the terms of the probation order to which
the Defender is presently subject. In evidence a comparison was drawn between
the terms of the order now sought and the conditions of bail and probation
orders. In particular Detective Sergeant Young was questioned about the
operation of additional conditions attaching to a bail order. Such conditions
may often prohibit the accused from approaching named persons or from entering
a specific location. The officer indicated that no problems were encountered in
the policing of bail orders with such additional conditions. However, such
additional conditions are far more specific than the provisions of the order
sought in the present application. The prohibition inevitably refers to
specific persons or places. The present application does not do this. Further, it
should not be lost sight of that an accused person has to consent to the
additional conditions, albeit there may be an element of the lesser of two
evils in so consenting. If he does not consent, he will inevitably be remanded
in custody. The maximum penalty for a breach of a bail condition in terms of
section 27 of the Criminal Procedure (
Similar observations can be made
regarding the conditions of the probation order to which the Defender is
presently subject. Again it is
consensual. Again, if he does not consent, there is a reasonable prospect that
a custodial sentence will be imposed. Further, the present order is subject to
frequent automatic review at which the court can amend the order. The Defender
can further apply to have the terms of the order amended. The present duration of the probation order
is three years. If the Defender was alleged to have breached a condition of
probation the circumstances would require to be considered by his supervising
officer. If satisfied that a potential breach had occurred, a report would
require to be submitted by his supervising officer to a sheriff. In light of
the breach report, a sheriff would consider whether the Defender should be
cited to a hearing or whether a warrant should be granted for his arrest. The
whole procedure for enforcement is more cumbersome and is subject to a number
of persons with potentially different view points considering matters before
any warrant was issued for the arrest of the Defender if one is indeed issued.
Indeed, one of the arguments put forward by the Pursuer for the grant of the
present order, when this probation order is in force, is the immediacy of the
enforcement procedure. If officers form the view that the Defender is in breach
of the order, then they can arrest the Defender immediately without a warrant.
In addition, even if the breach of the probation order is established, the
maximum sentence which could be imposed upon the Defender would be three months
imprisonment. Accordingly, whilst I accept that clause (c) of that order is
virtually the same as paragraph (i) of the order
presently sought, there are in my opinion good reasons for a more critical
examination of the provisions sought in the order presently sought.
'Accost' is defined in the 2nd
edition of the Oxford Dictionary of English as meaning 'to approach and address
boldly and aggressively.' Definitions of the word in the recent past have also
included stopping a person and further soliciting sexually. It seems to me that
'accost' is readily understood. It has the necessary clarity. It struck me
during submissions that this word neatly covered all aspects of the Defender's
behaviour which cause concern. If consideration is given to the incidents in
which the Defender has been involved since he came to the
If I were to make an order which
prohibits the Defender from accosting a lone female, it does not strike me as
being so restrictive that it interferes with the Defender's life to any
significant extent. I don't consider if I were to pronounce an order of that
nature that the Defender's rights under the European Convention of Human Rights
would be prejudiced. In effect, whilst such an order might cover conduct which
might not constitute criminal behaviour, nonetheless a person should not engage
in behaviour which amounts to accosting a female. Further, a person can easily
go about one's normal life without accosting another.
Having come to this conclusion, I
now turn to whether the order is necessary in light of the existence of the
probation order - R v Ali Badiei 2005 EWCA Crim 970 and
indeed the terms of the criminal law generally - R v Carl Leslie 2006 EWCA Crim 847. In
regard to the first point, Sheriff Principal Bowen in The City of
Turning to the second point, as I
have already observed, a prohibition against the Defender accosting a female,
prevents the Defender from acting in a way which is criminal. In addition, it might
prevent his acting in a manner which was not. It might also prevent the
Defender from putting himself in a situation in which firstly he might be
rendering himself liable for a criminal prosecution. Further, it might prevent
the Defender from putting himself in a position where a female is affected
prejudicially by his behaviour.
In all the circumstances I consider
that the order is necessary notwithstanding the existence of the probation
order and indeed the criminal law generally.
The next issue is the duration of
the order. The Pursuer sought an order for ten years. I am going to make an
order which will endure for five years. It has to be borne in mind that the
Defender was prosecuted for both offences under summary procedure. Whilst I
appreciate that the present Pursuer is separate from the prosecution
authorities, nonetheless the choice by the Crown was to prosecute the Defender
under summary procedure on both occasions. This suggested that the prosecution
considered that the offences, whilst serious, were not of such seriousness that
the penalty available to the court under summary procedure was insufficient to
mark the nature of the offences. Further, the choice of prosecution under
summary procedure denied the court of the power to impose an extended sentence,
which, of course, is available under solemn procedure, in the event of a
custodial sentence of any duration being imposed. Further, whilst I accept that
for the females concerned their experiences at the time of the offences were
undoubtedly most unpleasant and frightening, the fact remains that there are
more serious and unpleasant sexual offences which are unfortunately committed
in society. In addition, the Defender's history of committing such offences or
acting in such a way is relatively recent. Further, from the evidence led the
period over which the Defender behaved in the manner which prompted the present
application was relatively short. There is no evidence of the Defender having a
long history of so behaving. There is no evidence of the Defender behaving in a
similar manner until he came to
I finally wish to deal with the
issue of the Defender's rights in terms of the European Convention of Human
Rights. Counsel disagreed as to the manner in which I should consider these
matters. Counsel for the Defender made reference to his client's rights in
terms of Articles 8, 11, and 12. As I have already touched on, I do not
consider that I require to deal with this matter apart
from observing that the order which I shall make in this application, in my
opinion, does not require any detailed consideration as to its effect upon the
Defender's convention rights. Having regard to the terms of the order I have
granted, I do not consider that there is any question of the Defender's rights
in terms of the Articles of the Convention referred to being in any way
infringed.
The parties were agreed that a
hearing should be assigned to deal with the question of expenses. I have done
so. This hearing will further give parties the opportunity to consider the
implications of an article which appeared in the Sunday Herald of
SHERIFFDOM OF TAYSIDE,
CENTRAL AND
SUMMARY APPLICATION UNDER SECTION 105 OF THE SEXUAL OFFENCES ACT 2003
Court Ref: B143/06
WRITTEN SUBMISSIONS BY COUNSEL FOR THE PURSUER
in the cause
THE CHIEF CONSTABLE,
TAYSIDE POLICE, Police Headquarters,
PURSUER
against
ROBERT LESLEY BASTERFIELD (AP), residing at Flat
A,
DEFENDER
1. INTRODUCTION
1.1 In this summary application,
The Chief Constable of Tayside Police ("the pursuer") seeks a Sexual Offences
Protection Order ("SOPO") against Robert Lesley Basterfield
("the defender"). The terms of the order sought are as set out in Crave 1 of
the Closed Record, as amended. For ease of reference, the terms of Crave 1, in
its amended terms, are available to the court as a paper apart.
1.2 In support of this application,
the pursuer led evidence before the court on 26th, 27th
and 28th February 2007. The evidence, referred to in more detail
below, comprised the evidence of seven witnesses, which was presented together
with an Inventory comprising 17 documentary productions, and a Joint Minute of
Admissions. At the conclusion of the pursuer's proof, the defender indicated
that there would be no witnesses led for the defender, but rather that a
further Joint Minute of Admissions would be adjusted between the parties and
presented at a later date. That Joint Minute of Admissions is now before the
court.
1.3 The application now calls
before the court on
1.4 These written submissions for
the pursuer fall into four broad parts: (i) the
relevant statutory provisions are set out, with particular reference to the
test to be applied by the court in considering an application for a SOPO. Where
appropriate, the statutory provisions are discussed under reference to reported
cases, copies of which are contained in the pursuer's bundle of authorities;
(ii) the evidence in the case is discussed, though not fully rehearsed, in the
context of the statutory test and the caselaw; (iii)
the impact of the European Convention on Human Rights and Fundamental Freedoms
("ECHR") is discussed; and (iv) the submissions for the pursuer are thereafter
summarised.
1.5 Ultimately, it will be
submitted for the pursuer that the evidence before the court is sufficient to
discharge the statutory test, namely that the order sought is necessary and
proportionate, and should therefore be granted as first craved.
2. STATUTORY PROVISIONS
2.1 Unless otherwise stated, all
references are to the Sexual Offences Act 2003 ("the Act").
2.2 Section 105 provides that a
chief constable may apply for a SOPO in respect of a person who has been convicted
of an offence listed in paragraph 60 of Schedule 3 to the Act (s.105(1)(a)(i)) and where that
person has, since the commission of that offence, acted in such a way as to
give reasonable cause that it is necessary for such an order to be made (s.105(1)(b)).
There are two stages to this first leg of the statutory test.
2.3 Firstly, it must be shown that
the defender has committed what might be called a "qualifying offence." The
qualifying offences are set out in paragraph 60 of Schedule 3 to the Act and
include those set out in paragraphs 36 to 59C and other offences where the
court in imposing sentence determines that there was a significant sexual
aspect to the offender's behaviour in committing the offence. It should be
noted at this stage that section 92 provides that where the sentencing court so
determines, and where a certificate to that effect is issued by the court in
terms of s.92(2), that certificate shall be probative
and shall be sufficient proof of the fact that the person was convicted of a
qualifying offence for the purposes of Part 2 of the Act, including section
105.
2.4 Secondly, where a qualifying
offence has been committed, the chief constable must demonstrate that since the
commission of that qualifying offence, the defender has acted in such a way as
to give reasonable cause that it is necessary for such an order to be made.
This requirement calls upon the chief constable to carry out an assessment
sufficient to determine whether the order is necessary. The test to be applied in
determining this question, it is submitted, is substantially the same as that
later to be applied by the court, but importantly, this pre-determination of
the necessity of the order must be made by the chief constable in order to meet
the second stage of the first leg of the statutory test as set out in section
105(1)(b).
2.5 Section 105(3) provides:
"(3) The Sheriff may make the 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 the person; and
-
It is submitted that s.105(3)(b) does not apply in this case.
Section 105(3), under reference to
section 106(3) defines "protecting the public...from serious sexual harm" as
follows:
"(3) "Protecting the public or any
particular members of the public from serious sexual harm from the defendant"
[sic] means protecting the public in the United Kingdom or any particular
members of the public from serious physical or psychological harm, caused by
the defendant [sic] committing one or more offences listed in Schedule 3."
In this context, "harm" is
something short of "injury" (R v Rampley (Kim) [2006] EWCA Crim
2203 at para.s 20 - 23) and it is submitted that
"serious psychological harm" includes fear and distress.
2.6 This second leg of the
statutory test requires the court to be satisfied that the order sought is necessary for the purposes specified.
This second leg of the statutory test, it is submitted, is usefully approached
in two stages:
2.7 Firstly, the court must be
satisfied that there is sufficient material on which to make a determination (R v G [2006] EWCA Crim
1994). It is accepted that it is incumbent upon the pursuer to put sufficient
material before the court to show that the statutory provisions have been met (R v Halloren
[2004] 2 Cr App R (S) 301; R v D [2006] 1 WLR 1088). That material must relate to the defender's behaviour since the
commission of the qualifying offence;
2.8 Secondly, the court must be
satisfied that the order is necessary
and not simply appropriate (R v Halloren; R v D). In order to meet this test, the court
must conduct a risk assessment, and consider the likelihood of the defender
committing a further Schedule 3 offence and, in that event, the likelihood of
the victim of such an offence (and the person(s) intended to be protected by
the order) being caused serious physical or psychological harm as a result (R v D per Scott Baker L J at para. 11). In
short, the pursuer must satisfy the court that it is likely that the defender
will commit a further Schedule 3 offence and accordingly, that the order is
necessary to protect against serious harm being caused by the defender to the
victim of such an offence.
2.9 Section 107 makes further
provision relating to the effect of the order and its terms. The Act provides
that simply that the effect of the order is to prevent the defender from doing
anything prescribed in the order (s.107(1)(a)) for a
fixed period of not less than 5 years (s.107(1)(b)). A SOPO is, accordingly, by
its nature a prohibitive or "negative" order. Section 107(2) provides:
"(2) 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 defendant [sic]."
Section 107(2) should therefore be
seen as imposing a requirement of proportionality: the order should go no
further than is necessary to meet the risk. This might usefully be described as
the third leg of the statutory test.
2.10 An important and related point
is that as well as being no wider than necessary (i.e. proportionate), the terms of the
order must be sufficiently clear and precise. Dealing with an
similar order under Section 2 of the Crime and Disorder Act 1998 (the
predecessor of the provisions now contained in Section 104 of the Act as they
apply to
"If anyone is the subject of a prohibitory court order for breach of which he is liable to
severe punishment, that person is entitled to know, clearly and unambiguously,
what conduct he must avoid to comply with the order. Such clarity is essential
for him. It is scarcely less essential for any authority called upon to decide
whether the terms of the order have been broken. The order should be expressed
in simple terms, easily understood by those who, like the appellant, are not
very bright. If the order is wider than is necessary for the purposes of
protecting the public from serious harm from the defendant, the order will not
meet the requirements of section 2(4) of the Crime and Disorder Act 1998 and
will fall foul of the Convention requirement that the means employed, if
restrictive of guaranteed rights, should be necessary and proportionate to the
legitimate ends towards which they are directed."
B v Avon
and Somerset Constabulary, [2001] 1 WLR 340
per Lord Bingham of Cornhill, CJ at 354 para. 33
2.11 The three legs of the
statutory test might therefore be summarised as follows:
(i) Prior
to the order being sought:
(a) the
defender must have committed a qualifying offence (s.105(1)(a)(i),
Sch. 3, para. 60); and
(b) since
the commission of that offence, the defender must have behaved in such a way as
to give the pursuer reasonable cause to believe that an order is necessary
(s.105(1)(b)).
(ii) The court must be satisfied
that the order is necessary (s.105(3)), and must therefore:
(a) have
sufficient material on which to make a determination; and
(b) conduct a risk assessment (on
the basis of the defender's conduct since the commission of the qualifying
offence) to determine that is it likely that the defender will commit a further
Schedule 3 offence and conclude accordingly, that the order is necessary to
protect against serious harm being caused by the defender to the victim of such
an offence (s.105(3)(a)).
(iii) The court must be further
satisfied that the order contains only those prohibitions necessary to protect
against the risk, i.e. the court must
be satisfied that the order is proportionate
(s.107(2)).
2.12 Finally, it is worth pausing
to note at this stage that whilst obviously the court must be careful to ensure
that the statutory tests are met and that any order granted is both necessary
and proportionate, it was observed by the Court of Appeal in England in the
case of R v D, that "Parliament by
this legislation has spelt out strong measures for the protection of the public
and individual members of it from the actions of sex offenders and it is
important that the courts should give effect to it" (R v D per Lord Justice Scott Baker at 1095, para.
34).
3. EVIDENCE
3.1 Much of the factual evidence in
this case is not understood to be in dispute. Rather, the issue for the court
is whether the evidence, even taken at its highest, is sufficient to meet the
statutory test (and the ECHR). In general terms, it is submitted that the
pursuer has placed before the court sufficient evidence to meet the statutory
test outlined above and, that if met, the statutory test is compatible with the
ECHR (to the extent that necessary and proportionate restrictions of the
defender's Convention rights are permitted). It is intended in the paragraphs
which follow, to summarise and discuss the evidence within the framework of the
statutory test and to justify under more detailed reference to the evidence,
the pursuer's principal submission that the order sought is necessary and
proportionate, and should therefore be granted as first craved. The discussion
of the evidence which follows is not intended to be exhaustive, nor is it
considered appropriate in these submissions to fully rehearse the evidence
before the court.
3.2 It is useful to make two preliminary
points of general importance at this stage: Firstly, it is submitted that the
court should apply the civil standard of proof in this case, albeit applied
with the strictness appropriate to the seriousness and implications of the
matters to be proved (B v
3.3 Turning to the first leg of the
statutory test described above, it is submitted that it is clear that the
pursuer has shown that the defender committed a qualifying offence for the
purposes of s.105(1)(a)(i)
and Sch. 3, para. 60 of the Act. It is not disputed, as set out in Article of
Condescendence 4 and the Answer thereto, that the defender was convicted of a
qualifying offence on
3.4 Likewise, it is submitted that
the court should have no hesitation in finding that the pursuer has presented
sufficient evidence of enquiries and risk assessment sufficient to discharge
the burden imposed by s.105(1)(b). The material on
which the pursuer was entitled to conclude that since the commission of the
qualifying offence, the defender had behaved in such a way as to give
reasonable cause to believe that an order is necessary (s.105(1)(b)), is the
substantially the same material as was later placed before the court. For that
reason, and standing the pursuer's submission that the risk assessment to be
carried out by him in order to pre-determine necessity and meet s.105(1)(b)
being substantially the same exercise as later requires to be carried out by
the court, it is not intended to rehearse that material here. Rather, the
court's attention is drawn to the evidence of DCs
Fitzgerald and McGranaghan, who spoke to their
regular contact with the defender and to the risk assessments carried out
(reference is made to Article 5 of Condescendence and to Pro. No's 1 and 9), and further to the evidence of Dr Switzer and DS
Young. All of these witnesses spoke to some
extent to the extensive enquires made by the police officers at the pursuer's
behest, and to the careful consideration given by the police to the question of
whether a SOPO was necessary.
3.5 In particular, the court will
recall the evidence of DC Fitzgerald and DS Young concerning the
multi-disciplinary Crisis Management Meeting ("CMM") held on
3.6 Turning now to the second leg
of the statutory test, it is submitted that the pursuer has placed before the
court ample evidence on which to conduct a risk assessment to determine that is
it likely that the defender will commit a further Schedule 3 offence and
conclude accordingly, that the order is necessary to protect against serious
harm being caused by the defender to the victim of such an offence (s.105(3)(a)). Such an assessment must be made on the basis
of the defender's conduct since the commission of the qualifying offence and it
is intended to summarise, on the following timeline, the evidence which the
pursuer urges the court to accept as being menacingly eloquent of the risk
posed by the defender:
(i)
Conviction at
(ii)
Incident at the Last Cast public
house in
(iii) 20 & 22 July 2005
Incidents
on the North Inch in
(iv)
The court is referred to the
evidence of Kevin Brown, who spoke to the defender's conduct whilst a member of
the Perthshire Eagles Rugby Club. Mr Brown gave evidence of the defender's
behaviour which he described as being generally odd and inappropriate
(including participating in a training session on a public sports field wearing
only his underpants and calling "chat-lines" advertised in pornographic
magazines on the team bus). More particularly, Mr Brown gave evidence relating
to his observations of the defender's interaction with women associated with
the Rugby Club.
It is submitted that this evidence
is significant, and indicative of the defender's predisposition to approach
females inappropriately. The court will recall Mr Brown's evidence that he
twice observed the defender leaving the Rugby Club at the same time as females
and being told subsequently of their concerns about the defender's behaviour.
Having expressed his own concerns in evidence about the defender's behaviour,
Mr Brown's assessment, based on his own contact with the defender, was ultimately
that "he [the defender] doesn't see women as equals, only objects..." Reference
is made to Article 8 of Condescendence and to Pro. No. 5 at
page 3.
(v)
Incident at
North Inch and elsewhere in
It is submitted that the evidence
of this incident and the defender's subsequent conviction is compelling.
Indeed, it is submitted that there can be no better evidence of the likelihood
of the defender committing a further Schedule 3 offence than the fact that
since the date of the qualifying offence, he has done so. Moreover, the court's
attention is drawn to the circumstances of the incident in which a lone female
was followed and accosted, the locus and the effect on the victim.
(vi) April
2006
Incident at
a taxi rank close to Sportsters' Bar in
3.7 It is submitted that the court
is assisted in the required risk assessment exercise by the evidence of Dr
Switzer, who psychiatrically assessed the defender and has reviewed much of the
material available to the court, together with additional background material,
which he referred to in evidence. The court will recall Dr Switzer's diagnosis
of the defender as having a schizotypal disorder.
Reference is made to the extract of evidence of the examination-in-chief of Dr
Switzer at pages 8 - 10, where the disorder is explained by the witness.
Discussing the accounts of various incidents, including some of those
summarised above and others, Dr Switzer explained in evidence that the
behaviour exhibited by the defender was consistent with his diagnosis of schizotypal disorder, which shares many of the traits of Asperger's syndrome of a person who is "cold, aloof..., does
not understand normal social etiquette, certainly would not be able to spot
normal social cues..." Dr Switzer further explained that the defender lacked any
perception of why his behaviour towards women was inappropriate, exhibited a
tendency to minimise offending behaviour and lacked any victim empathy.
Ultimately, Dr Switzer concluded that:
"he [the
defender] did not suffer from a treatable mental illness... And that he was at
a high risk of re-offending due to the nature of the offence and the nature of
his account, the offence, the minimisation, lack of victim empathy and his
overall misunderstanding of wrong doing in this case is... So I felt that he
was at risk of harm or certainly a distress to others in the future but that
medicine had no place in trying to prevent that and in fact I further discussed
this just coming towards the end of his admission and near to his discharge
when I drop the Section with my consultant at the time and the Forensic
Psychiatric Consultant Dr Whyte and we came to the
agreement that this gentleman presented a rather worrying presentation it was
not within the remit of psychiatry to prevent or enable us to prevent any
further re-offending and he was in fact a danger and quite a worrying danger to
others but not something we could help with."
Extract of evidence of the
examination-in-chief
of Dr Switzer
at pages 26 - 27 (emphasis added).
Dr Switzer further confirmed his
opinion that the defender presents a special risk to females, that the schizotypal disorder he suffers from is usually a lifelong
disorder and that in his view, a prohibition against being in the company of
lone females without their consent would "go a long way towards preventing a
risk." Notwithstanding rigorous cross-examination, Dr Switzer adhered to his
diagnosis and assessment of risk.
3.8 The effect of Dr Switzer's
evidence, it is submitted, is that the defender's conduct towards women is
caused by, or may at least be explained by reference to, his schizotypal disorder. It follows that for so long as he
suffers from that disorder, the defender is likely to behave inappropriately
towards women. It is apparent from the nature and circumstances of the
qualifying offence and his subsequent conduct (including his second conviction)
that his inappropriate behaviour towards women is likely to manifest itself in
criminal conduct and that the victims of that conduct are likely to be caused
serious psychological harm (in the form of fear and distress) or worse. Such
submissions are borne out in the opinion of Dr Switzer. If accepted, this
evidence, together with the factual material available since the commission of
the qualifying offence would, it is submitted, allow the court to conduct the
required risk assessment and to readily conclude that it is likely that the
defender will commit a further Schedule 3 offence and conclude accordingly,
that the order is necessary to protect against serious harm being caused by the
defender to the victim of such an offence (s.105(3)(a)).
3.9 In the event that the court
accepts the pursuer's risk assessment of the likelihood of the defender
committing a further Schedule 3 offence (and thereby concludes that the second
leg of the statutory test to that extent is met), it is submitted that the
evidence suggests he is likely to do so in circumstances likely to cause fear
or great distress to those women. As such, the court is invited to accept that
it is likely that (at least) serious psychological harm would be caused to the
victim of any such offence.
3.10 Turning lastly to the third
leg of the statutory test in this discussion of the evidence, it is submitted
that there is sufficient material before the court from which it may conclude
that the order sought is proportionate.
That is, to conclude that the SOPO contains only those prohibitions necessary
to meet the risk in accordance with section 107(2) of the Act. In considering
proportionality, the court must clearly have regard to the precise terms of the
prohibitions sought, the practical extent of those prohibitions and the
duration of the order during which (without variation or discharge in terms of
s.108) the order will remain in force.
3.11 Two general points are worth
noting at this stage: Firstly, the terms of the order sought must be
proportionate to the risk at the time when the order is made. However, it is
submitted that in considering proportionality, it is legitimate to take into
account the possibility that, should the risk decrease, be extinguished or otherwise
change during the term of the order, the Act provides for its variation or
discharge (and also for its renewal, where the risk continues beyond its term)
(section 108). Therefore, so long as the order sought is proportionate to meet
the risk as assessed at the time when the order is made, its longer-term
proportionality or effectiveness need not necessarily be taken into account by
the court. Secondly, whilst the pursuer submits that the terms of the order
sought are necessary and proportionate, it is open to the court, to grant the
order in such other terms as the court considers appropriate as being necessary
and proportionate. In the event that the court is not prepared to grant the
order in the terms set out in Crave 1, as amended, and for a
duration of ten years, the court is invited to grant a SOPO in such
other terms, or for such other period as the court considers necessary and
proportionate in all the circumstances.
3.12 The prohibitions sought in the
application before the court and as set out in Crave 1, as amended, are
directed specifically towards the risk said by the pursuer to be posed by the
defender. It is the pursuer's position, and it is submitted that this is amply
borne out by the evidence before the court, that the defender presents a
special risk to lone females. Accordingly, the prohibitions sought seek to
prevent the defender from being in circumstances in which he could be presented
with an opportunity to offend as previously. Each of sub-paragraphs (i) - (iv) of Crave 1 aim to set
out, in clear and unambiguous terms, the circumstances in which the defender is
prohibited from being in the company of lone females. In each case, the
prohibition is tempered by the qualification that it applies except where the
lone female has given her expressed consent for the defender to be in her
company. Furthermore, the final "excepting" paragraph of Crave 1 makes clear
that the specific prohibitions do not apply to an initial (first) approach by
the defender to any lone female for the purpose of seeking her consent to be
within her company.
3.13 The prohibitions sought are
specifically directed towards direct contact between the defender and lone
females and do not, for instance, seek to prohibit his communication with any
lone female by any other means such as telephone or e-mail. The prohibitions
are restricted to direct contact because that is how the defender has
inappropriately approached females and offended in the past. In short, the
prohibitions seek to go no further than necessary to meet the risk. The
prohibitions are directed specifically towards the defender's likely victims
and are not blanket prohibitions. It is submitted that they are carefully
tailored and limited to meet the re-offending risk and to afford protection to
the public and particularly to lone females. It is submitted that the order
sought is proportionate and meets the third leg of the statutory test set out
in section 107(2) of the Act.
3.14 In considering
proportionality, it is submitted that the court may take into account the
presence or absence of any other effective protective measures. In this case,
it is anticipated that the defender will argue, inter alia, that the SOPO is neither necessary nor proportionate
since the probation order ("PO") imposed by the court on 20 December 2006 now
affords sufficient protection. Reference is made to Article 4 of Condescendence
and to the Answer thereto, to Pro. No. 13 and to the parties'
second Joint Minute of Admissions.
3.15 It is submitted by the pursuer
that the PO granted on 20 December 2006 does not afford for same protection as
that offered by the SOPO, for the following reasons: (i)
the consequences for breach of the terms of the PO imposed in respect of a
summary offence are considerably less than those which breach of a SOPO may
potentially attract and as such, are less of a disincentive; (ii) the SOPO
carries an immediate right of arrest for its breach and so can be acted upon
quickly by police officers to immediately prevent harm; (iii) the prohibition
in the PO against being in the company of lone females is in general terms and
is imprecise; (iv) a breach of probation is generally detected and acted upon
by the Social Work Department and results in a report of breach being sent to
the sentencing court; (v) the process for dealing with a breach of a PO is
often slow, whereas breach of a SOPO may result in the defender being arrested
and brought to court to answer the alleged breach the next lawful day; (vi) the
duration of a PO in respect of a conviction on summary complaint is restricted
to 3 years and cannot be extended, whereas a SOPO provides long-term protection
(subject always to variance or discharge); and (vii) a PO is principally
designed to attempt to address offending behaviour and it's causes. It is
likely to be ineffective where those causes are untreatable.
3.16 Finally, it is of significance
that the SOPO, as originally craved was granted ad interim on
"There has been a considerable
reduction in the receipt of any detrimental information regards Mr Basterfield since the introduction of that interim order."
Extract of evidence of the
examination-in-chief
of DS Young
at page 25.
4. ECHR
4.1 The defender avers, inter alia, that the order sought is
contrary to his rights under Articles 8 and 11 of the ECHR. Reference is made
to Article of Condescendence 13 and the Answer thereto. The pursuer's principal
submission on this question is that where the statutory test in the Act is met,
any restriction of the defender's ECHR rights are prescribed by law, permitted
by the terms of the Act, which has the legitimate aim of public protection and
which go no further than necessary and proportionate to meet that legitimate
aim. The impact of each of Articles 8 and 11 are discussed in turn.
4.2 The pursuer must and does
accept that the defender's rights under Article 8 are clearly engaged and
restricted by the terms of the order sought. Article 8(2) allows interference
with this right "as in accordance with the law and [where] necessary in a
democratic society in the interests of... the prevention of... crime, for the
protection of health or morals, of for the protection of the rights and
freedoms of others." Adopting the reasoning of Lord Bingham of Cornhill in B v
4.3 The defender avers that his
Article 11 right to freedom of association is infringed by the terms of the
order sought. The pursuer submits that the defender's Article 11 rights are not
engaged by the SOPO sought. As the language of Article 11 suggests, the right
of freedom of association is concerned with the right to form or be affiliated
with a group or organisation pursuing particular common aims (Young, James and Webster v UK (1981) 4
EHRR 38). Mere casual contacts, for instance with work colleagues or
classmates, are not sufficient to establish an association; it involves a
deliberate effort to set up an organisational structure. It is not a right to
enjoy the personal company of others (McFeeley v UK
(Commission) (1981) 3 EHRR 161).
4.4 The prohibitions sought in the
SOPO before the court are all directed towards
preventing the defender from being in the company of a lone female (without her
expressed consent). It is submitted that where only two persons are involved
(the defender and a lone female), there is no collective entity, no
organisational structure and no "association" in the proper sense of Article
11. Accordingly, it is submitted that the defender's Article 11 rights are not
engaged or infringed by the terms of the SOPO. If the pursuer's submission on
that point is not accepted by the court, the provisions of Article 11(2) lend
themselves to the same analysis as that set out above in respect of Article
8(2) and on that basis, any infringement of the
defender's Article 11 rights would be justified.
5. SUMMARY OF SUBMISSIONS
5.1 The submissions for the pursuer
may be summarised as follows:
(i) The
defender was convicted of a qualifying offence for the purposes of s.105(1)(a)(i) and Schedule 3 on
(ii) After that date, the defender
behaved in such a way as to give the pursuer reasonable cause to believe that
it was necessary for a SOPO to be made;
(iii) The pursuer conducted
thorough and detailed enquiries and risk assessments in determining that a SOPO
was necessary;
(iv) The pursuer
has placed before the court sufficient evidence to enable to court to consider
whether the SOPO is necessary or not;
(v) To consider whether the SOPO is
necessary, the court must conduct a risk assessment to consider the likelihood
of the defender committing a further
Schedule 3 offence and in that event, the likelihood that the victim of such an
offence would be caused serious physical or psychological harm;
(vi) "Psychological harm" includes
fear or distress caused by a non-contact sexual offence;
(vii) The evidence before the court
indicates that the defender is likely to commit a further Schedule 3 offence
and that the victim of any such offence would be caused serious physical or
psychological harm;
(viii) The SOPO is accordingly
necessary for the purpose of protecting the public and, in particular, lone
females from that harm, in terms of s.105(3)(a);
(ix) The prohibitions contained in
the SOPO sought only include those necessary to protect the public and in
particular, lone females, from the risk posed by the defender (s.107(2));
(x) The SOPO sought is accordingly
proportionate;
(xi) The SOPO is necessary,
proportionate and effective;
(xii) The SOPO granted ad interim on
(xiii) The defender's rights under
Article 8 of the ECHR are infringed by the SOPO but such infringement is
permitted in terms of Article 8(2);
(xiv) The defender's rights under
Article 11 of the ECHR are not engaged and therefore not infringed by the SOPO;
(xv) Esto the defender's rights under Article
11 of the ECHR are engaged and infringed by the SOPO, such infringement is
permitted in terms of Article 11(2)
(xvi) The SOPO should be granted in
terms of Crave 1, as amended;
(xvii) Esto, the SOPO should be granted in such
other terms and for such other duration as the court considers necessary and
proportionate in all the circumstances.
5.2 Counsel for the pursuer shall,
of course, seek to assist the court further as necessary.
Counsel moved me to sustain the
Pursuer's first plea in law and repel the Defender's pleas in law. Decree
should be granted in terms of the amended crave one. Commenting upon the
submissions made on behalf of the Defender, he did not have an issue with the
law, both domestic and ECHR, set out in paragraphs 1-23. Counsel did observe that
oppression was not a term of art. Further, reference to recent behaviour had to
be relative in light of the whole evidence.
Turning to the statutory test for
the granting of the order, counsel referred me to his written submissions. When
referring to behaviour, he questioned the restriction referred to in paragraph
8 in that section of the Defender's submissions. There was nothing either in
the legislation or case law which justified this restriction. The starting off
point was the qualifying offence, namely
Turning to the section of the
Defender's submission concerning serious sexual harm, counsel did not consider
that there required to be evidence of harm actually occurring in the previous
incident. In any event that evidence was available. Likewise, he did not accept
that serious psychological harm meant a diagnosable condition. He referred to
the terms of section 106(3) and R v Rampley 2006 EWCA Crim 2203.
The use of 'harm' as opposed to 'injury' in the legislation was significant.
There was ample evidence of the victims being frightened. The victims suffering
harm could be inferred. The fact that both prosecutions were by summary
procedure were of no relevance. The order sought had a different function to a
prosecution. The order was solely for the protection of the public.
Turning to the issue of necessity,
this was the crux of the matter. The probation order was to address the
Defender's behaviour and as a result of that the public might be protected.
Such an order was insufficient to meet the risk posed by the Defender. His
medical condition was untreatable and enduring. The interim order seemed to be
working. The fact that consent qualified the prohibitions resulted in the order
not being oppressive. Whilst the order was not black and white, it was
comprehensible, satisfied the legislation and met the risk posed.
Turning to the issue of oppression,
this was not a terms of art. The test to be met was set out in R v Collard 2004 EWCA Crim 1664. It was necessary and proportionate. The court
could be redrafted by the court.
Turning to the Human Rights aspect, counsel rejected the contention that the order was unlawful by reference to section 6 of the Human Rights Act. Nor was the order disproportionate. The order sought did not breach articles 8, 11, and 12.
SHERIFFDOM OF TAYSIDE, CENTRAL AND
SUBMISSION FOR THE DEFENDER
in the cause
B143/06
THE CHIEF CONSTABLE, Tayside
Police, Police Headquarters,
PURSUER
against
ROBERT LESLEY BASTERFIELD, Flat A,
DEFENDER
CONTENTS
(i)
Introduction
(ii) Legislation
(iii) Summary of legal
propositions
(iv)
Discussion
I. Introduction
(i)
The Defender seeks that his pleas in law 1 - 4 inclusive be sustained, and the
Pursuer's pleas in law 1 and 2 repelled.
(ii) It is submitted
that the Sexual Offences Protection Order ("SOPO") craved by the Pursuer should
be refused in whole, in respect that the Pursuer has failed to meet the test
set out within the terms of the Sexual Offences Act 2003 ("the 2003 Act).
(iii) In particular, the
Pursuer has failed to demonstrate that there is a risk of serious sexual harm.
(iv)
Further, the Pursuer has failed in any event to
demonstrate that the order is necessary.
(v) That to grant the
SOPO craved by the Pursuer would be oppressive.
(vi) Separatim,
the SOPO craved is unlawful by dint of the operation of section 6(1) of the
Human Rights Act in that it infringes the Defenders rights under the European
Convention on Human Rights ("ECHR"), Articles 8, 11 and 12.
(vii) The Defender
reserves the right to make oral submissions beyond the terms hereof and to
respond to the submissions, both written and oral of the Pursuer.
II. Legislative background
The relevant provisions
of the Sexual Offences Act 2003 are as follows:
s 105 SOPOs: further
provision as respects
(1) A chief constable
may apply for an order under this section in respect of a person who he
believes is in, or is intending to come to, the area of his police force if it
appears to the chief constable that-
(a) the
person has been convicted of, found not guilty by reason of insanity of or
found to be under a disability and to have done the act charged against him in
respect of-
(i)
an offence listed in paragraph 60 of Schedule 3; or
(ii) before the
commencement of this Part, an offence in Scotland other than is mentioned in paragraphs
36 to 59 of that Schedule if the chief constable
considers that had the conviction or finding been after such commencement it is
likely that a determination such as is mentioned in paragraph 60 would have been made in relation to the offence; and
(b) the person has
since the conviction or finding acted in such a way as to give reasonable cause
to believe that it is necessary for such an order to be made.
(2) An application
under subsection (1) may be made by summary application to a sheriff
(aa) within whose sheriffdom
the person in respect of whom the order is sought resides;
(ab) within whose sheriffdom
the person is believed by the applicant to be;
(ac)
to whose sheriffdom the person is believed by the
applicant to be intending to come;
(b) [within
whose sheriffdom lies ] any place where it is alleged
that the person acted in a way mentioned in subsection (1)(b).
(3) The sheriff may
make the 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 person; and
(b) where
the application is by virtue of subsection (1)(a)(ii), that there was a
significant sexual aspect to the person's behaviour in committing the offence.
(4) Subsection
(3) of section 106 applies for the purposes of this
section as it applies for the purposes of section 104 and subsections (2) and (3) of section 112 apply in relation to a summary application made by virtue
of subsection (1) as they apply in relation to one made by virtue of subsection
(1)(e) of that section
s 106 Section 104: supplemental
(1) In this Part,
"sexual offences prevention order" means an order under section 104 or 105.
(2) Subsections (3) to
(8) apply for the purposes of section 104.
(3) "Protecting
the public or any particular members of the public from serious sexual harm
from the defendant" means protecting the public in the United Kingdom or
any particular members of that public from serious physical or psychological
harm, caused by the defendant committing one or more offences listed in
Schedule 3.
(4) Acts, behaviour,
convictions and findings include those occurring before the commencement of
this Part.
(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
(7) A person is within
this subsection if, under the law in force in a country outside the
(a) he
has been convicted of a relevant offence (whether or not he has been punished
for it),
(b) a
court exercising jurisdiction under that law has made in respect of a relevant
offence a finding equivalent to a finding that he is not guilty by reason of
insanity,
(c) such a court has
made in respect of a relevant offence a finding equivalent to a finding that he
is under a disability and did the act charged against him in respect of the
offence, or
(d) he
has been cautioned in respect of a relevant 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) or (7).
(9) In subsection (7),
"relevant offence" means an act which--
(a) constituted
an offence under the law in force in the country concerned, and
(b) would
have constituted an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 5 if it had been done in any part of the
(10) An act punishable
under the law in force in a country outside the
(11) Subject to subsection
(12), on an application under section 104(5) the condition
in subsection (9)(b) (where relevant) is to be taken
as met unless, not later than rules of court may provide, the defendant serves
on the applicant a notice-
(a) stating
that, on the facts as alleged with respect to the act concerned, the condition
is not in his opinion met,
(b) showing
his grounds for that opinion, and
(c) requiring
the applicant to prove that the condition is met.
(12) The court, if it
thinks fit, may permit the defendant to require the applicant to prove that the
condition is met without service of a notice under subsection (11).
s 107 SOPOs:
effect
(1) A sexual offences
prevention order-
(a) prohibits
the defendant from doing anything described in the order, and
(b) has
effect for a fixed period (not less than 5 years) specified in the order or
until further order.
(2) 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 defendant.
(3) Where-
(a) an
order is made in respect of a defendant who was a relevant offender immediately
before the making of the order, and
(b) the defendant would
(apart from this subsection) cease to be subject to the notification
requirements of this Part while the order (as renewed from time to time) has
effect,
the
defendant remains subject to the notification requirements.
(4) Where an order is
made in respect of a defendant who was not a relevant offender immediately
before the making of the order-
(a) the order causes
the defendant to become subject to the notification requirements of this Part
from the making of the order until the order (as renewed from time to time)
ceases to have effect, and
(b) this
Part applies to the defendant, subject to the modification set out in
subsection (5).
(5) The "relevant
date" is the date of service of the order.
(6) Where a court makes
a sexual offences prevention order in relation to a person already subject to
such an order (whether made by that court or another), the earlier order ceases
to have effect.
(7) Section
106(3) applies for the purposes of this section and section
108.
s 108 SOPOs:
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;
(c) a
chief officer of police who believes that the defendant is in, or is intending
to come to, his police area;
(d) where
the order was made on an application under section 104(5), the chief officer of police who made the application.
(3) An application
under subsection (1) may be made-
(a) where
the appropriate court is the Crown Court, in accordance with rules of court;
(b) in
any other case, by complaint.
(4) Subject to
subsections (5) and (6), on the application the court, after hearing the person
making the application and (if they wish to be heard) the other persons
mentioned in subsection (2), may make any order, varying, renewing or
discharging the sexual offences prevention order, that the court considers
appropriate.
(5) An order may be
renewed, or varied so as to impose additional prohibitions on the defendant,
only if it is necessary to do so for the purpose of protecting the public or
any particular members of the public from serious sexual harm from the
defendant (and any renewed or varied order may contain only such prohibitions
as are necessary for this purpose).
(6) The court must not
discharge an order before the end of 5 years beginning with the day on which
the order was made, without the consent of the defendant and-
(a) where
the application is made by a chief officer of police, that chief officer, or
(b) in
any other case, the chief officer of police for the area in which the defendant
resides.
(7) In this section
"the appropriate court" means-
(a) where
the Crown Court or the Court of Appeal made the sexual offences prevention
order, the Crown Court;
(b) where a
magistrates' court made the order, that court, a magistrates' court for the
area in which the defendant resides or, where the application is made by a
chief officer of police, any magistrates' court whose commission area includes
any part of the chief officer's police area;
(c) where
a youth court made the order, that court, a youth court for the area in which
the defendant resides or, where the application is made by a chief officer of
police, any youth court whose commission area includes any part of the chief
officer's police area.
(8) This section
applies to orders under-
(a) section 5A of the Sex
Offenders Act 1997 (c. 51) (restraining orders),
(b) section 2 or 20 of the Crime and Disorder Act 1998 (c. 37) (sex offender
orders made in
(c) Article 6 of the
Criminal Justice (
as
it applies to sexual offences prevention orders.
s 109 Interim 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.
(4) Such an order-
(a)
has effect only for a fixed period, specified in the order;
(b) ceases
to have effect, if it has not already done so, on the determination of the main
application.
(5) Section
107(3) to (5) apply to an interim sexual offences
prevention order as if references to an order were references to such an order,
and with the omission of "as renewed from time to time" in both
places.
(6) The applicant or
the defendant may by complaint apply to the court that made the interim sexual
offences prevention order for the order to be varied, renewed or discharged.
(7) Subsection (6)
applies to orders under-
(a) section
2A or 20(4)(a) of
the Crime and Disorder Act 1998 (c. 37)
(interim orders made in
(b) Article 6A of the
Criminal Justice (
as
it applies to interim sexual offences prevention orders.
s 111 Appeals in relation to SOPOs and interim SOPOs:
In
(a) an interlocutor
granting, a sexual offences prevention order
on an application under section 104(5) or 105(1) or interim sexual offences prevention order or refusing,
varying, renewing or discharging either such order is an appealable
interlocutor;
(b) where
an appeal is taken against an interlocutor so granting, varying or renewing
such an order the order shall, without prejudice to any power of the court to
vary or recall it, continue to have effect pending the disposal of the appeal.
(c) a sexual offences
prevention order made in any other case and any order granting or refusing a
variation, renewal or discharge of such a sexual offences prevention order are,
for the purposes of appeal, to be regarded-
(i)
in the case of solemn proceedings, as if they were orders of the kind referred
to in section 106(1)(d) of the Criminal
Procedure (Scotland) Act 1995 (c.46) (appeal against probation and community
service orders);
(ii) in
the case of summary proceedings, as if they were orders of the kind referred to
in section 175(2)(c) of that Act (appeal against
probation, community service and other orders); and
(d) where
an appeal is taken by virtue of paragraph (c) above, the High Court of Justiciary may, in the appeal proceedings, suspend the
order appealed against pending the disposal of the appeal.
s 112 Sections 104 and 106 to 109:
(1) Sections 104 and 106 to 109
apply to
(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 within
(ia) within whose sheriffdom
the person in respect of whom the order is sought resides;
(ib) within whose sheriffdom
that person is believed by the applicant to be;
(ic) to whose sheriffdom
that person is believed by the applicant to be intending to come;
(ii) within
whose sheriffdom lies any place where it is alleged
that that person acted in a way mentioned in subsection (5)(b) of section 104,
(and, in
relation to such an order, references to a court or the court shall be
construed accordingly);
(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,
(and, in
relation to such an order, references to a court or the court shall be
construed accordingly),
(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;
(iia) within whose sheriffdom
that person is believed by the applicant to be; or
(iib) to whose sheriffdom
that person is believed by the applicant to be intending to come,
(and, in
relation to an application made by virtue of this paragraph, references to a
court or the court shall be construed accordingly).
(g) an
application for the variation, renewal or discharge of a sexual offences
prevention order which was made where subsection (2) or (3) of section 104
applies may be made only by the person in respect of whom the order has effect
or the prosecutor;
(h) such
an application is made-
(i) where the sexual offences prevention order sought to be
varied, renewed or discharged was made by the High Court of Justiciary,
to that court;
(ii) where
that order was made by the sheriff, to the appropriate sheriff.
(1A) In subsection (1)(h)(ii), the "appropriate sheriff" is-
(a) in a case where the person in
respect of whom the order has effect is, at the time of the application for its
variation, renewal or discharge, resident in a sheriffdom
other than the sheriffdom of the sheriff who made the
order, any sheriff exercising criminal jurisdiction in the sheriffdom
in which the person is resident;
(b) in any
other case, any sheriff exercising criminal jurisdiction in the sheriff court
district of the sheriff who made the order.
(2) A record of evidence shall be
kept on any summary application made by virtue of subsection (1)(e) or (f) above.
(3) The clerk of the court by
which, by virtue of that subsection, a sexual offences prevention order or
interim sexual offences prevention order is made, varied, renewed or discharged
shall cause a copy of, as the case may be-
(a) the
order as so made, varied or renewed; or
(b) the
interlocutor by which discharge is effected,
to be given to the person named in
the order or sent to him by registered post or by the recorded delivery service
(an acknowledgement or certificate of delivery of a copy so sent, issued by the
Post Office, being sufficient evidence of the delivery of the copy on the day
specified in the acknowledgement or certificate).
s 113 Offence: breach of SOPO or interim SOPO
(1) A person commits an offence if,
without reasonable excuse, he does anything which he is prohibited from doing
by-
(a) a
sexual offences prevention order;
(b) an
interim sexual offences prevention order;
(c) an
order under section 5A of the Sex Offenders Act 1997 (c. 51) (restraining orders);
(d) an
order under section 2, 2A or 20 of the Crime and Disorder Act 1998 (c. 37) (sex
offender orders and interim orders made in
(e) an
order under Article 6 or 6A of the Criminal Justice (
(2) A person guilty of an offence
under this section is liable-
(a) on
summary conviction, to imprisonment for a term not exceeding 6 months or a fine
not exceeding the statutory maximum or both;
(b) on
conviction on indictment, to imprisonment for a term not exceeding 5 years.
(3) Where a person is convicted of
an offence under this section, it is not open to the court by or before which
he is convicted to make, in respect of the offence, an order for conditional
discharge or, in
The Human Rights Act 1988
s 1 The Convention Rights.
(1) In this Act "the
Convention rights" means the rights and fundamental freedoms set out in--
(a)
Articles 2 to 12 and 14 of the Convention,
(b) Articles 1 to 3 of the First
Protocol, and
(c) Article 1 of the Thirteenth
Protocol
as read with
Articles 16 to 18 of the Convention.
(2) Those Articles are to have
effect for the purposes of this Act subject to any designated derogation or
reservation (as to which see sections 14 and 15).
(3) The Articles are set out in
Schedule 1.
(4) The Secretary of State may by
order make such amendments to this Act as he considers appropriate to reflect
the effect, in relation to the
(5) In subsection (4)
"protocol" means a protocol to the Convention--
(a) which the
(b) which
the
(6) No amendment may be made by an
order under subsection (4) so as to come into force before the protocol
concerned is in force in relation to the
s 2 Interpretation of Convention rights.
(1) A court or tribunal determining
a question which has arisen in connection with a Convention right must take
into account any--
(a) judgment,
decision, declaration or advisory opinion of the European Court of Human
Rights,
(b) opinion
of the Commission given in a report adopted under Article 31 of the Convention,
(c) decision
of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d) decision
of the Committee of Ministers taken under Article 46 of the Convention,
whenever made or
given, so far as, in the opinion of the court or tribunal, it is relevant to
the proceedings in which that question has arisen.
(2) Evidence of any judgment,
decision, declaration or opinion of which account may have to be taken under
this section is to be given in proceedings before any court or tribunal in such
manner as may be provided by rules.
(3) In this section
"rules" means rules of court or, in the case of proceedings before a
tribunal, rules made for the purposes of this section--
(a) by the
Lord Chancellor or the Secretary of State, in relation to any proceedings
outside
(b) by the
Secretary of State, in relation to proceedings in
(c) by a
(i) which deals with transferred matters; and
(ii) for
which no rules made under paragraph (a) are in force.
s 3 Interpretation of legislation.
(1) So far as it is possible to do
so, primary legislation and subordinate legislation must be read and given
effect in a way which is compatible with the Convention rights.
(2) This section--
(a)
applies to primary legislation and subordinate legislation whenever enacted;
(b) does
not affect the validity, continuing operation or enforcement of any
incompatible primary legislation; and
(c) does
not affect the validity, continuing operation or enforcement of any
incompatible subordinate legislation if (disregarding any possibility of
revocation) primary legislation prevents removal of the incompatibility.
s 6 Acts of public authorities.
(1) It is unlawful for a public
authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply
to an act if--
(a) as
the result of one or more provisions of primary legislation, the authority
could not have acted differently; or
(b) in the case of one or more
provisions of, or made under, primary legislation which cannot be read or given
effect in a way which is compatible with the Convention rights, the authority
was acting so as to give effect to or enforce those provisions.
(3) In this section "public
authority" includes--
(a) a
court or tribunal, and
(b) any
person certain of whose functions are functions of a public nature,
but does
not include either House of Parliament or a person exercising functions in
connection with proceedings in Parliament.
(4) In subsection (3)
"Parliament" does not include the House of Lords in its judicial
capacity.
(5) In relation to a particular
act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
(6) "An act" includes a
failure to act but does not include a failure to--
(a) introduce
in, or lay before, Parliament a proposal for legislation; or
(b) make
any primary legislation or remedial order.
s 7 Proceedings.
(1) A person who claims that a
public authority has acted (or proposes to act) in a way which is made unlawful
by section 6(1)
may--
(a) bring
proceedings against the authority under this Act in the appropriate court or
tribunal, or
(b) rely
on the Convention right or rights concerned in any legal proceedings,
but only
if he is (or would be) a victim of the unlawful act.
(2) In subsection (1)(a) "appropriate court or tribunal" means such
court or tribunal as may be determined in accordance with rules; and
proceedings against an authority include a counterclaim or similar proceedings.
(3) If the proceedings are brought
on an application for judicial review, the applicant is to be taken to have a
sufficient interest in relation to the unlawful act only if he is, or would be,
a victim of that act.
(4) If the proceedings are made
by way of a petition for judicial review in
(5) Proceedings under subsection
(1)(a) must be brought before the end of--
(a) the
period of one year beginning with the date on which the act complained of took
place; or
(b) such
longer period as the court or tribunal considers equitable having regard to all
the circumstances,
but that
is subject to any rule imposing a stricter time limit in relation to the
procedure in question.
(6) In subsection (1)(b) "legal proceedings" includes--
(a) proceedings
brought by or at the instigation of a public authority; and
(b) an
appeal against the decision of a court or tribunal.
(7) For the purposes of this
section, a person is a victim of an unlawful act only if he would be a victim
for the purposes of Article 34 of the Convention if proceedings were brought in
the European Court of Human Rights in respect of that act.
(8) Nothing in this Act creates a
criminal offence.
(9) In this section
"rules" means --
(a) in relation to proceedings
before a court or tribunal outside Scotland, rules made by the Lord Chancellor
or the Secretary of State for the purposes of this section or rules of court,
(b) in
relation to proceedings before a court or tribunal in
(c) in
relation to proceedings before a tribunal in
(i) which deals with transferred matters; and
(ii) for
which no rules made under paragraph (a) are in force,
rules
made by a
and
includes provision made by order under section 1 of the Courts and Legal Services Act
1990.
(10) In making rules, regard must
be had to section 9.
(11) The Minister who has power
to make rules in relation to a particular tribunal may, to the extent he
considers it necessary to ensure that the tribunal can provide an appropriate
remedy in relation to an act (or proposed act) of a public authority which is
(or would be) unlawful as a result of section
6(1), by order add to--
(a) the
relief or remedies which the tribunal may grant; or
(b) the
grounds on which it may grant any of them.
(12) An order made under
subsection (11) may contain such incidental, supplemental, consequential or
transitional provision as the Minister making it considers appropriate.
(13) "The Minister"
includes the
European Convention on Human Rights
Article 5 Right to liberty and security
1. Everyone has the right to
liberty and security of a person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed by law:
(a) the
lawful detention of a person after conviction by a competent court;
(b) the
lawful arrest or detention of a person for non-compliance with the lawful order
of a court or in order to secure the fulfilment of
any obligation prescribed by law;
(c) the lawful arrest
or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so;
(d) the detention of a
minor by lawful order for the purpose of educational supervision or his lawful
detention for the purpose of bringing him before the competent legal authority;
(e) the
lawful detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the
lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom
action is being taken with a view to deportation or extradition.
2. Everyone who is arrested
shall be informed promptly, in a language which he understands, of the reasons
for his arrest and of any charge against him.
3. Everyone arrested or
detained in accordance with the provisions of paragraph 1(c) of this Article
shall be brought promptly before a judge or other officer authorised
by law to exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial.
4. Everyone who is deprived of
his liberty by arrest or detention shall be entitled to take proceedings by
which the lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.
5. Everyone who has been the
victim of arrest or detention in contravention of the provisions of this
Article shall have an enforceable right to compensation.
Article 8: Right to privacy and family life
1. Everyone has the right to respect for his private and family life,
his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.
Article 11: freedom of
association
1. Everyone has the right to freedom of peaceful assembly and to freedom
of association with others, including the right to form and to join trade
unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other
than such as are prescribed by law and are necessary in a democratic society in
the interests of national security or public safety, for the prevention of
disorder or crime, for the protection of health or morals or for the protection
of the rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by members of
the armed forces, of the police or of the
administration of the State.
Article 12: right to
marry
Men and women of marriageable age have the right to marry and to found a
family, according to the national laws governing the exercise of this right.
III. Summary of
propositions
Domestic law
1 That the Pursuer requires to demonstrate, by reference to evidence, that the Order
craved is necessary, and not merely desirable: R v Halloren (Times Law Reports
2 The order must be tailored to the
purported risk, and must not be oppressive or disproportionate: R v Collard [2004] EWCA Crim
1664, paragraph 24.
3 The court requires to consider what other measures are presently in place in
relation to the Defender: R v Ali Badiei [2005] EWCA Crim 970,
paragraph 13.
4 The Pursuer requires to show why sentencing for sexual offences per se will not meet the purported need:
R v Carl Leslie [2006] EWCA Crim 847, paragraph 19.
5 In considering whether the
granting of a SOPO is necessary, any behaviour founded upon requires to be
demonstrated to have been recent: R v G
[2006] EWCA Crim 1994, paragraph 25.
6 Specific consideration
must be given to any potential adverse impact upon employment: R v Neil B [2005] EWCA Crim
2747, paragraph 8.
European Convention on Human Rights
General
7 In the generality, an act of a
public authority which is prima facie
incompatible with the Convention rights of an individual will be justified if
a) it is in pursuit of a legitimate aim; and b) it bears a relationship of
reasonable proportionality to that legitimate aim: Handyside v UK (1976) 1 EHRR 737.
8 That the foregoing is not merely
concerned with the compatibility of any legislative provision, but also its
application in each case.
9 The terms of sections 104-113 of
the Sexual Offences Act 2003 require to be read down in a manner compatible with the Defender's Convention rights: Human Rights Act 1998, section 3.
Article 8(1)
10 "Family life" is defined widely
under the
11 Sexual relationships fall under
the definition of "family life": Bruggeman v
12 Article 8 rights extend to the
workplace: Niemetz, supra, paragraph 29; Halford
v
Article 8(2)
13 Infringement of the right
conferred by Article 8(1) can only be justified where same is necessary in a
democratic society.
14 The terms of any SOPO craved
require to be specifically tailored so as not to unduly interfere with the
Defender's home, family, social or work life except where necessary to deal
with a pressing social need: Handyside, supra,
paragraph 48.
15 It is necessary to construe
section 105 of the 2003 Act strictly, and any order sought thereunder must meet
only and precisely the harm founded upon by the Pursuer: B v Chief Constable of
Article 11
Article 11(1)
16 Freedom of association is a
general capacity for citizens to join without interference by the State an
association in order to attain various ends: Association X v
17 The association in question
requires to be a defined organisation and not merely a
loose social coming together of individuals: McFeeley v
18 The right only applies to
private associations and does not extend to the State or State-operated bodies: Association X, supra, paragraph 63.
Article 11(2)
19 Freedom of association is not an
absolute right. Interference with the right is permissible where it is
proportionate to do so in pursuit of a legitimate aim: Gorzelik v
20 The extent to which interference
in terms of Article 11(2) may be permitted with the right conferred by Article
11(1) is subject to strict interpretation: Gorzelik, supra, paragraph 58.
Article 12
21 Article 12 of ECHR protects the
formation of a legally binding association between a man and a woman: Hamer v
22 It is fundamental that domestic
law should not destroy the very right of marriage: Cossey v
23 Even deprivation of liberty does
not per se entitle the domestic law
to remove the right to marry: Draper v
IV. Discussion
Domestic law
The statutory test
1 It is submitted that the test set
out in section 105 of the 2003 Act falls into 2 stages:
(i) That
there has been a conviction for a "sexual offence", which may be any offence
which the sentencing court deems to have a significant sexual aspect to its
commission in terms of paragraph 60 of Schedule 3 to the 2003 Act; and
(ii) There is subsequent behaviour
which demonstrates reasonable cause to suspect the risk of serious sexual harm
to the public, thereby making the order necessary.
2 The granting of such an order is
at the discretion of the Court.
3 A SOPO is potentially a draconian
order, which has a minimum term of 5 years.
4 Breach of a SOPO may result in a
custodial sentence of up to 5 years.
5 There is no automatic power of the
Court to review the terms of a SOPO. Any review must be invoked by a party to
the proceedings by minute of variation. Where the party seeking variation is
the Defender, this would require him to seek funding of such a process, whether
privately or by Legal Aid.
Behaviour
6 It is submitted that the crux of
the test for the granting of a SOPO in terms of section 105 o9f the 2003 Act is
the behaviour founded upon which is post conviction.
7 There must be demonstrated to
have been behaviour post-conviction which demonstrates a risk of serious sexual
harm and also demonstrates that sentencing alone for the conviction is
insufficient.
8 It is submitted that in the
present case, where the Pursuer founds upon 2 convictions, the behaviour which
may found the application of the test is that which post-dates the later
conviction.
9 The content of the note book
forming Pursuer's production 12 was founded upon by the Crown in the sentencing
relative to the later conviction, and the sentencing sheriff clearly had regard
to the same when imposing sentence.
10 It is accordingly submitted that
the content of Production 12 cannot of itself be regarded as post-conviction
behaviour on which an application for a SOPO may be founded.
11 Esto the Pursuer is entitled to rely
upon the later conviction as post-conviction behaviour for the purposes of
section 105, the behaviour must nevertheless be recent.
12 In the present case, the later
conviction relates to an incident which occurred in February 2006. The
behaviour is accordingly not recent and does not per se demonstrate that the granting of a SOPO is necessary.
13 It is submitted that, in terms
of the wording of the statutory test, a conviction together with a risk
assessment do of themselves not permit the Court to grant a SOPO.
Serious sexual harm
14 The harm may be physical or
psychological.
15 It is submitted that as a sine qua non, there requires to be an
evidential basis to suggest a risk of material harm. It is submitted that there
must accordingly be evidence that serious sexual harm has in fact occurred due
to the behaviour of the Defender previously.
16 It is submitted that "serious"
psychological harm can only mean a diagnosable psychological condition. It
would be insufficient for the purposes of the statutory test that a complainer
suffered fear or alarm. It is submitted that Parliament clearly intended that
an order such as a SOPO should only be granted where there were such serious
circumstances.
17 In the present case, whilst it
is accepted that the offences in question undoubtedly caused the complainers
fear and alarm, neither suffered any physical harm. Further, there was no
evidence of any psychological condition suffered by either complainer, nor was
evidence led by the Pursuer of any such diagnosis.
18 Accordingly, the antecedent
convictions demonstrate that there has been some degree of psychological sequelae on the
part of the complainers, but that these do not amount to significant
psychological harm.
19 With regard to the subsequent
behaviour founded upon by the Pursuer, the only issue which may suggest sexual
harm pertains to the April 2006 "taxi incident". There was no evidence led from
the female involved in that incident and no evidence was adduced as to the
effect, if any, which said incident may have had upon
her beyond the observation by an eye witness that she appeared to be frightened
within the taxi.
Necessity
20 It is submitted that the Pursuer
must fail unless it can be demonstrated by evidence that post-conviction
behaviour makes the granting of a SOPO necessary.
21 Reference is made to the
foregoing paragraphs relative to the nature of the post-conviction behaviour
founded upon. It is submitted that, for the foregoing reasons, same does not
entitle the Court to hold that the granting of such an order is necessary.
22 Further, and in any event,
before granting an order, the Court must be satisfied that the sentencing of
the Defender alone would not be sufficient.
23 In the present case, the
Defender is presently subject to a probation order. There are additional
conditions of probation which include a prohibition on the Defender being in
the company of a lone female except with her expressed consent. Further, the
Defender cannot obtain employment whether paid or otherwise without the consent
of his supervising officer. The probation order is of a three
year duration from
24 It is submitted that the
probation order amounts to sufficient protection for the protection of the
public. Further, it is submitted that the additional conditions of the
probation order clearly demonstrate that the sentencing sheriff had the
protection of the public in mind when imposing the order.
25 The compliance of the Defender
with his bail conditions prior to the imposition of the probation, together
with his compliance with the probation order since its imposition, demonstrate
that there is no current operative behaviour on the part of the Defender which
necessitates the granting of a SOPO.
26 Further, the overlap of the
additional conditions of probation and the SOPO craved demonstrate that there
can be no need for the SOPO whilst the probation order remains in force.
27 The evidence of Dr Switzer was
to such that the granting of the order may have some extra effect of
underlining to the Defender that his previous behaviour was wrong. However, it
is submitted that Dr Switzer's evidence is not of assistance to the present
issue. Dr Switzer has not assessed the Defender since the probation order was
imposed. The prohibition within the probation order is the very one which Dr
Switzer in any event considered useful at least to a limited degree. It is
therefore submitted that there is no material benefit to be attained in the
granting of the SOPO craved.
28 The current probation order is
in the circumstances, superior to the terms of the SOPO craved. It imposes on
the Defender positive obligations, principally obliging him to take part to a
satisfactory standard in a sex offender programme. Accordingly, it is submitted
that this further demonstrates the SOPO to be unnecessary.
29 A SOPO should not be granted
merely because it is desirable or useful to do so.
30 The evidence of the DS Young was
to the effect that the SOPO was necessary over and above the probation order in
the event of breach of the SOPO, since the powers of arrest and prosecution for
the latter were swifter than the former. It is however submitted that this line
of evidence falls to be disregarded since there is no evidence that any grounds
exist as a matter of fact to demonstrate a risk that the Defender has or is
likely to breach the terms of the probation order.
31 Further, the procedures which
may be used in the event of breach of a SOPO are nothing to the point with
regard to the test of necessity. The granting of the SOPO is based on the
behaviour of the Defender and the reasonable anticipation of serious sexual
harm.
32 Specific consideration
must be given to the likely impact the SOPO may have on employment. Whereas the
Pursuer has deleted the specific reference to the workplace or place of
voluntary work or self employment, the issue may nevertheless still arise
indirectly. The Defender is currently unemployed. There is evidence that he has
applied for various jobs in the locality. The terms of the SOPO craved would be
active even during a job application.
33 The current probation order, by
way of comparison, permits the Defender to seek or obtain employment or
similar, with the consent of his supervising officer. There is no mechanism
whereby such consent may be obtained in the context of the SOPO. The only
remedy available to the Defender would be to incur the expense of seeking a
variation of the order. If that were required for each job application, the
process would be inflexible and impractical.
34 It is submitted that this issue
further demonstrates that the SOPO craved is unnecessary, and that the terms of
the probation order are not only adequate to address the Defender's perceived
risk, but are superior to the terms of the SOPO craved.
35 The terms of the order craved is
contradictory to the psychiatric evidence relied upon by the Pursuer.
It was the position of Dr Switzer that only a "black and white" prohibition
would be effective in respect of the Defender. The order craved instead inserts
many shades of grey by ostensibly permitting a preliminary approach by the
Defender to a lone female.
Oppression
36 It is submitted that any SOPO
sought by the Pursuer must be clear and precise in its terms so as to give the
Defender fair notice of the prohibition it carries.
37 Further, the order must be
tailored in terms of width and duration to the harm founded upon. If that does
not occur, the order sought would be oppressive.
38 The duration of the order must
be shown to be necessary. The amended order craved is for a period of 10 years.
It is submitted that no basis has been demonstrated as to why an order of 10
years is necessary. The figure selected
is arbitrary and so is oppressive.
39 The duration of a SOPO is correlated
to the width of the prohibition sought.
40 The present case involves a wide
prohibition for a long duration. It is submitted that evidence has not been led
to demonstrate why this combination is necessary.
41 It is submitted that a "black
and white" prohibition would be manifestly oppressive, and separatim, patently would
infringe the Defender's Convention Rights in a disproportionate manner (see
below).
42 The order, if granted, would
present a clear difficulty in enforcement. It is clear from the evidence of DS
Young that the Pursuer and his officers expect to act quickly in the event of a
perceived breach of the order by the Defender.
43 As however highlighted in cross
examination of DS Young, it is foreseeable that a police officer may require to investigate the circumstances where the Defender was in
the company of an adult female. That may be perfectly legitimate in terms of
the order craved, either because it was a preliminary approach, or that the
woman consented. In either event, a police officer would require to conduct enquiries. It was the evidence of DS Young that
such enquiries would involve either the Defender requiring to be detained under
section 14 of the Criminal Procedure (
44 It is submitted that the
foregoing issues are manifestly oppressive. The SOPO contains no mechanism
other than one which deprives a potentially innocent man of his liberty, for
the investigation as to whether the man was indeed innocent.
45 The above issue of arrest or
detention, separatim,
would as a consequence infringe the Defender's Convention Right under Article 5
of ECHR.
ECHR
General
46 The Pursuer is a "public
authority" for the purposes of section 6 of HRA.
47 It is accordingly unlawful for the
Pursuer to act in a manner which is incompatible with those rights under ECHR
which are imported into HRA by virtue of section 1 thereof.
48 Articles 5, 8, 11, and 12 of
ECHR are inter alia, so imported into HRA.
49 The domestic law enjoys a
certain margin of appreciation relative to the implementation of Articles 8, 11
and 12. However, the right to liberty in terms of Article 5 is a fundamental
freedom and so has no margin of appreciation.
50 The terms of the 2003 Act
require to be read down in a manner compatible with the rights afforded by
ECHR.
51 It is submitted that the terms
of section 105 of the 2003 Act are capable of being read down in a manner
compatible with the Convention Rights of the Defender, and so the terms of the
legislation itself are not per se
unlawful.
52 Section 105 of the 2003 Act does
not of itself seek to proscribe various activities. The issue of what may be
sought within a SOPO is thus a question for the draftsman and the Court. The
determination of such an exercise does bring into operation the terms of
section 6(1).
53 The "act" of the Pursuer in the
present case which renders operable the provisions of section 6 of HRA is the
bringing and maintaining of the present action against the Defender.
54 The foregoing issues apply also
the Court. The granting of a SOPO which is incompatible with the Convention
rights of the Defender would be an "act" which would render operative the
provisions of section 6(1) of HRA. The Court, for this purpose, is also a
"public authority".
55 A provision or act which appears
prima facie to be incompatible with
Convention Rights may nevertheless be justified by the public authority if it
is:
(a) In pursuit of a legitimate aim;
and
(b) Bears a relationship of
reasonable proportionality to that legitimate aim.
56 In the present case, it is
submitted that the SOPO craved in the present case can only be regarded as
being in pursuit of a legitimate aim if it can be demonstrated on the evidence
that the test provided for in section 105 of the 2003 Act has been met by the
Pursuer.
57 In the present case, for the
reasons set out above, it is submitted that the Pursuer has failed to make out
the apposite statutory test. Where that is so, the order craved is a fortiori unlawful in terms of section
6(1) of the HRA.
58 Esto, the Pursuer has made out the
statutory test, which is denied, it is submitted that the order craved is
disproportionate in all the circumstances.
59 It is submitted that the following issues, whether separately or cumulatively, demonstrate that the Defender's Convention Rights would be infringed by the granting of the SOPO craved, and further, those infringements are disproportionate.
Article 8
60 The definition of "family life"
has been afforded a wide meaning in the Strasbourg Jurisprudence. The approach
of the
61 It is settled law that sexual or
romantic relationships fall within the definition of "family life" for the
purposes of Article 8(1).
62 In the present case the order
craved seeks, in effect, to limit the Defender from entering into romantic or
sexual relationships with adult women.
63 Further, it has been accepted
within the Stasbourg Jurisprudence that the scope of
the right under Article 8(1) extends to the workplace. Accordingly, relations
with work colleagues would fall to be included under Article 8(1).
64 It is submitted, a fortiori, that "family life" may also
include relations with sporting or club colleagues.
65 The terms of the SOPO craved are
accordingly a plain infringement of the right enjoyed by the Defender in terms
of Article 8(1).
66 Interference with the right
under Article 8(1) is justified only where permitted under Article 8(2), namely
where it is necessary in a democratic society.
67 A SOPO must be demonstrated, in
order to be proportionate in terms of Article 8 of ECHR, to be designed to meet
a pressing social need, but must be bespoke to be no more strictly necessary to
meet the social need in question.
68 In the present case, it is
submitted that the duration of the order craved, together with its wide scope,
renders it disproportionate, and so unlawful under section 6 of HRA relative to
the right conferred on the Defender by Article 8 of ECHR.
Article 12
69 The right of the Defender to
marry per se is one which is strictly protected under Article 12 of ECHR.
70 A fortiori of the Defender's submissions in terms of Article 8,
the SOPO craved plainly effectively infringes the Defender's right to form a
legally binding association between a man and a woman.
Article 11
71 The right enjoyed under Article
11(1) relates to the general capacity for citizens to engage in private
associations without interference by the state.
72 Any interference with the
Article 11(1) right requires to be proportionate in
terms of Article 11(2).
73 The scope of interference in
terms of Article 11(2) requires to be construed strictly.
74 Whilst the evidence suggests
that the Defender is not currently a member of the Perthshire Eagles Rugby
Club, he cannot in any event continue to do so by virtue of the operation of
the interim SOPO. The SOPO craved makes no specific reference to a prohibition
on the Defender attending sporting activities. Nevertheless, it is reasonably
foreseeable that the order would so prevent. The evidence in the present case
was to the effect that there was a social side to rugby which brought adult
females into participation with male club members.
75 The definition of "association"
under Article 11(1) would extend to attendance at educational classes.
76 Further, the SOPO craved would
prevent the Defender from attendance at the Gaelic class. The Defender is presently
prevented from attending the same by virtue of the terms of the interim SOPO.
He would effectively be prevented from attending such a class where adult
females also attended were the SOPO craved to be granted.
77 There is no evidence to suggest
that any attendee of the Gaelic Class attended by the Defender, or any member
of staff thereat, was subjected by the Defender to sexual harm of any degree.
78Whilst it may be argued that the
SOPO craved is proportionate in respect that no specific reference is made to
sporting or education activities, it is submitted that the generality of the
craved prohibition nevertheless extends to these.
79 It is submitted that no risk has
been identified in the evidence relative to such activities. The prohibition craved
is accordingly disproportionate.
On
Counsel stressed that there had to
be evidence to enable the court to conclude that the order was necessary to
protect the public from serious sexual harm. If there was no evidence that the
Defender had previously caused serious sexual harm. If there was no such
evidence, the court could not infer that the Defender would so act in the
future. I was referred to R v Rampley 2006 EWCA Crim 2203.
A risk assessment which indicated the Defender constituted a potential danger
was insufficient. The harm must be caused by a sexual act or conduct.
I was referred to R v D 2006 1WLR 1088. There had been no
averments of recent incidents. The order sought was draconian. The English
authorities had to be considered with care.
In the present case, the two
convictions have a significant sexual aspect but they were towards the lower
scale of offending. I was referred to page 9 paragraph
23 of Sheriff Fletcher's report in the appeal against sentence imposed in
respect of the second conviction. No serious harm was caused, the conduct was
not per se serious, there had been no long term serious harm. Counsel referred
me to R v Collard and the issue of
oppression. Oppression meant greater than is necessary. The grant of the order
might result in collateral issues. I was referred to R v Halloren 2004 TLR 11th
February 2004. There had been no exacerbation of the Defender's behaviour since
April 2006. The behaviour since the second offence was less serious than the
behaviour involved in the offences.
Turning to the evidence, counsel
submitted that Detective Constable Fitzgerald's risk assessment was of little
weight. He had limited experience. Referring to the Pursuer's production 5, the
only evidence of the incident of
The Defender had complied with both
bail and probation orders. Referring to paragraph 3.6 in the Pursuer's
submission and the incidents following the qualifying conviction he submitted
that incidents in July 2005 simply amounted to odd behaviour. The actions
during the 2005-6 rugby season was not of the
strongest character. There was no evidence from any of the females concerned
notwithstanding that they were traceable. The evidence consisted of unreliable
observations from a distance. The taxi incident did not involve any
conversation or interaction. Fear alone was insufficient. The Defender's
actions did not demonstrate serious sexual harm.
The probation order had changed the
picture. The terms of the order overlapped with the order now sought. The
Pursuer required to show that the probation order was
unsatisfactory or insufficient or exclude it. That order was being
complied with. Detective Sergeant Young's evidence was contradictory. Speed of
action was not an important factor. The probation order had an aim to protect
the public. There were no grounds for the present order to be granted whilst
the Defender was subject to probation. The order might be useful but it was not
necessary.
Turning to the terms of the order
sought, I was referred to B v Chief
Constable of
Turning to the European Convention
of Human Rights, I was referred to the decision in Handyside v
