Cooper v Shanks

JurisdictionScotland
JudgeSheriff Principal CD Turnbull,Sheriff NA Ross
Judgment Date12 December 2017
CourtSheriff Appeal Court
Docket NumberNo 3
Date12 December 2017

[2017] SAC (Crim) 19

Sheriff Principal CD Turnbull and Sheriff NA Ross

No 3
Cooper
and
Shanks
Cases referred to:

Advocate (HM) v KH [2014] HCJAC 36; 2014 JC 195; 2014 SCCR 485; 2014 SCL 525; 2014 GWD 15–280

Hay v HM Advocate [2012] HCJAC 28; 2014 JC 19; 2012 SLT 569; 2012 SCCR 281; 2012 SCL 492

Main v Scottish Ministers [2015] CSIH 41; 2015 SC 639; 2015 SLT 349; 2015 SCLR 732

Justiciary — Sentence — Notification requirements — Fine imposed for a sexual assault resulting in a five-year notification requirement — Whether excessive — Sexual Offences Act 2003 (cap 42), sec 82

Neil Cooper was charged in the sheriffdom of Grampian, Highland, and Islands at Aberdeen on a summary complaint at the instance of Andrew Shanks, procurator fiscal there, with a contravention of sec 3 of the Sexual Offences (Scotland) Act 2009. On 19 May 2017, the appellant was convicted after trial and a £300 fine was imposed upon him, resulting in the imposition of a five-year notification period in terms of sec 82 of the Sexual Offences Act 2003. The appellant thereafter appealed against sentence to the Sheriff Appeal Court.

Section 82 of the Sexual Offences Act 2003 (cap 42) (‘the 2003 Act’) provides that a person who is made subject to a community payback order imposing an offender supervision requirement shall be subject to the notification requirements for the specified period of the offender supervision requirement. The section also provides that a person who has a financial penalty imposed shall be subject to the notification requirements for a five-year period.

The appellant appeared on a summary complaint alleging a contravention of sec 3 of the Sexual Offences (Scotland) Act 2009 (asp 9). The appellant was convicted after trial. The sheriff was invited to impose a community payback order with an offender supervision requirement in order to restrict the time the appellant would be subject to the notification requirements. The sheriff considered that the offence was not sufficiently severe to justify the imposition of a community payback order and that the resultant notification period was not something he could have regard to when selecting the appropriate sentence. The sheriff imposed a £300 fine, resulting in the appellant being subject to the notification requirement for five years.

The appellant argued that: (1) being made subject to the notification requirements for five years was excessive; (2) a community payback order was no more or less serious a sentence than a financial penalty; and (3) being made subject to the notification requirements for a period of five years was a disproportionate interference with the appellant's Art 8 rights under the European Convention on Human Rights and Fundamental Freedoms.

Held that: (1) the sheriff ought to have taken into account the resultant notification requirements when imposing sentence (paras 5, 9); (2) being made subject to the notification requirements for five years was excessive (para 10); and appeal allowed and a community payback order with a six-month offender supervision requirement substituted.

Hay v HM Advocate 2014 JC 19 considered.

The appeal called before the Sheriff Appeal Court, comprising Sheriff Principal CD Turnbull and Sheriff NA Ross, for a hearing, on 27 September 2017. A further hearing took place on 7 November 2017.

At advising, on 12...

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