This interesting little case (EA v HM Advocate  HCJAC 96) may have sneaked under the radar. I now come back to it for two reasons; firstly it is an important lesson in the requirements for the imposition of a Sexual Offences Prevention Order (SOPO); and, secondly (and less importantly) I was involved in the drafting of the Note of Appeal.
The circumstances can be briefly stated. The appellant pled guilty to having sexually assaulted his 25 year old stepdaughter, on 18 August 2012, by placing his hand under her bedcovers whilst she was asleep and rubbing her buttocks over her pyjamas. He was aged 63 years at the time of the offence and 65 years at the date of sentencing.
The appellant had previous convictions which included a conviction for rape, committed in 1983, when he was 34 years old. He was sentenced to 8 years imprisonment for the rape (and a breach of the peace), in 1985. He was released from that sentence in 1990. There were no other sexual offences on his schedule of previous convictions. This was, therefore, his first conviction for a sexual offence for 30 years.
The Sheriff imposed a Community Payback Order (CPO) with certain conditions including a requirement for the appellant to engage with offence-focussed interventions provided by the Social Work Department. The CPO was for three years duration.
In addition the Sheriff imposed a SOPO prohibiting the appellant from: –
- Initiating or having contact with any female without having (i) sought and obtained the approval of his criminal justice social worker or police offender manager,and (ii) having disclosed full details of his offending history to that female;
- Engaging in any business, employment or other activity likely to bring him into contact with any female without the prior approval of his criminal justice social worker or police offender manager;and
- Initiating or having any contact with any child without the approval of his criminal justice social worker or police offender manager.
The Appeal challenged the imposition of the SOPO. There were a number of grounds advanced, not all of which I intend to rehearse here. However for the criminal practitioner there are a number of points of interest.
Section 104(1)(b) of the Sexual Offences Act 2003 allows the sentencing court to impose a SOPO where “it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant.” There must be a sound basis for the court to reach that conclusion which will mean: –
(i) that there is a real risk that the offender will, in the future, cause serious sexual harm to the public or to particular members of the public,
(ii) that it is necessary to impose a SOPO to protect the public/particular members of the public from that harm,
(iii) that the imposition of a SOPO would, in all the circumstances, be proportionate, and (iv) that the precise terms of the SOPO proposed would not be oppressive. (paragraph )
In the appellant’s case, the Sheriff had already imposed a CPO, the result of which was that the appellant was already subject to supervision and intervention. The test for the imposition of a SOPO is, put simply, necessity. In these circumstances it could not be said that a SOPO was necessary for the protection of the public, there being other protections in place.
Content of the Reports
The Sheriff had available reports from the Social Work Department and a psychologist. Criticism was made of the content of the reports which included matters treated as established fact which were (1) not contained within the agreed narrative, (2) allegations of previous behaviour which had never been tested and (3) assertions made in relation to the nature of previous convictions. In response to those criticisms, the Appeal Court said this: –
“For the avoidance of doubt, we are not suggesting that it is never appropriate for the authors of such reports – or the court – to have regard to facts that are additional to those in a Crown narrative. There may, for instance, be additional facts which are admitted by the offender or which have been established in some other forum. Care must, however, be taken to avoid treating allegations or suspicions as established fact, particularly where the offender has had no proper opportunity to consider or answer them.” (paragraph )
The Appeal Court concluded that the reliability of the opinions contained within the reports was questionable.
It is perhaps this final aspect of the appeal which has the widest application. The conditions contained in the SOPO were extremely wide. As the Appeal Court pointed out, it would be almost impossible for the appellant to have conducted his everyday life without breaching the conditions. The Sheriff’s view that the supervising social workers would be in a position to ameliorate these conditions was wrong. It is not for the appellant and those supervising him to agree on terms which are not specified in the SOPO.
The interesting point is this – the conditions of this SOPO were not conceived by the Sheriff, but were instead proposed by the Social Work Department. It is my understanding that this is standard practice, not only in cases where the criminal courts impose a SOPO as a part of a sentence, but also where a Summary Application is made to the Sheriff. There may also be parallels with the approach of those drafting summary applications seeking the imposition of Anti-Social Behaviour Orders (ASBOs.)
For the practitioner, it is therefore important to consider the Appeal Court’s approach to the far-reaching conditions originally imposed – not only was a SOPO not necessary, had one been necessary the conditions imposed were too wide and therefore oppressive.