Shehzad Ashraf V. Procurator Fiscal, Edinburgh
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Emslie,Sheriff Principal Brian A Lockhart |
| Neutral Citation | [2012]HCJAC59 |
| Court | High Court of Justiciary |
| Date | 27 March 2012 |
| Docket Number | XJ1343/10 |
| Published date | 09 May 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Carloway Lord Emslie Sheriff Principal Lockhart | XJ1343/10 and XJ304/12 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE and BILL OF SUSPENSION by SHEHZAD ASHRAF Appellant; against PROCURATOR FISCAL, EDINBURGH Respondent: _____________ |
Appellant: CM Mitchell; Wilson McLeod
Respondent: Brown, Q.C. A.D.; Crown Agent
27 March 2012
[1] On 11 August 2010, at Edinburgh Sheriff Court, the appellant was convicted of a contravention of section 5(3) of the Criminal Law (Consolidation)(Scotland) Act 1995 and sentenced to 240 hours community service as a direct alternative to custody.
[2] The circumstances were that the appellant was a 31 year old first offender. The complainer was aged 14. At about 9.00 pm on 31 December 2008 the complainer had left her foster carers to celebrate New Year in the city centre. She had not told her foster carers of her intentions and they had reported her missing. She had been picked up by the appellant, who had been driving his car along Captain's Road in Gracemount. He had then taken her to a friend's house, from which the friend was absent, and had celebrated New Year by giving the complainer alcohol prior to having consensual sexual intercourse with her. He subsequently drove her to her sister's house and gave her his contact details for future use or otherwise.
[3] In mitigation it was said that the appellant had been told by the complainer that she was 18 or 19 and had a child. He had been ashamed of what he had done, once he had found out the age of the girl.
[4] The Sheriff reports that he regarded the offence as a serious one and that it was appropriate to consider a custodial sentence. He decided not to impose such a sentence and selected 240 hours community service instead. He did not consider that probation, with a condition of unpaid work, was appropriate, because there was no focus for such an order.
[5] The Court has before it two processes. The first is a Bill of Suspension. It is contended, in terms of the Bill and the associated Devolution Minute, that the Lord Advocate was acting contrary to the appellant's Article 8 rights by accepting a plea of guilty to the offence, since a conviction following upon such acceptance would automatically result in the appellant being subject to the notification requirements of the Sexual Offences Act 2003. The contention was that this result amounted to a breach of...
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