Stephen House Qpm, Chief Constable Of The Police Service Of Scotland V. D.j.r.+d.d.s.
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Mhairi M. Stephen |
| Court | Sheriff Court |
| Docket Number | B28/13 |
| Date | 22 August 2013 |
| Published date | 08 October 2013 |
| SHERIFFDOM OF LOTHIAN AND BORDERS Case Numbers: B28/13 & B97/13 | |
| Judgment by SHERIFF PRINCIPAL MHAIRI M STEPHEN in appeals by STEPHEN HOUSE, QPM, THE CHIEF CONSTABLE OF THE POLICE SERVICE OF SCOTLAND, Tulliallan Castle, Tulliallan, Alloa Pursuer and Appellant against D.J. R Defender and First Respondent and D. D. S. Defender and Second Respondent ___________________________ |
Act: Sheldon, Advocate instructed by Messrs Morton Fraser, LLP
Alt: Frazer, Advocate, instructed by Messrs Haddon & Turnbull, Solicitors (for the first respondent)
Alt: McDonald, Advocate, instructed by Messrs Andrew Haddon & Crowe, Solicitors ( for the second respondent)
EDINBURGH, 23 August 2013
The Sheriff Principal, having resumed consideration of the cause, refuses the appeals and adheres to the sheriff's interlocutors of 27 June 2013; Appoints parties to be heard on the question of the expenses of the appeal procedure at 10.30am on 4 September 2013, within the Sheriff Principal's Appeal Court, 27 Chambers Street, Edinburgh.
(signed) Mhairi M Stephen
NOTE:
1. The appellant in these summary applications is the Chief Constable of the Police Service of Scotland, Stephen House, QPM. The grounds of appeal are identical in both applications (B28/13 and B97/13). The respondents are D.J.R and D.D.S.
2. Both respondents are defenders in other summary applications pending before the sheriff at Selkirk (and Peebles) at the instance of the appellant. These pending applications are the "main applications" in respect of the appellant's crave for inter alia a Sexual Offences Prevention Order (SOPO) and an interim sexual offences prevention order in terms of sections 104 and 109 of the Sexual Offences Act 2003 (Court References B48/13 & B2580/12 (B16/13) respectively). Neither respondent challenges the orders made by the learned sheriff at Selkirk on 27 June 2013 continuing the interim SOPOs granted earlier this year and continued repeatedly in the main applications. Neither respondent takes issue with the grant of an interim SOPO. Neither opposed the interim SOPO at the outset. They both have an expectation that they will be heard by the sheriff on any order to be made on the main applications and in this regard hearings have been fixed for September and October this year. Both respondents supported the reasoning of the sheriff.
3. This appeal lies against the sheriff's dismissal of the appellant's applications made separate to but in furtherance of the main applications (B28/13 & B97/13). Summary application B28/13 brought by the appellant against DJR craved renewal of the interim SOPO granted by Selkirk Sheriff Court (in the main application) for a period of one year from 27 June 2013 to 26 June 2014 and by imposing a new prohibition.
4. In the separate application in respect of DDS (B97/13) the appellant also craved renewal of an interim SOPO granted by a sheriff in Edinburgh on 22 January 2013 (in the main application) again for a period of one year as from 27 June 2013 and again with further prohibitions.
5. In both cases the appellant avers that continuations of the interim SOPO from 7 February 2013 onwards were not competent renewals. In the application in respect of DDS the appellant avers "such continuations of the interim order are not competent under the 2003 Act. Section 112(1)(ea)(ii) of the 2003 provides that in the event the main application for a SOPO has been made, an application for an interim SOPO 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 by application." In the application in respect of DJR the appellant avers "it is not competent to continue an interim SOPO by virtue of section 112(1)(f) of the 2003 Act which provides for the variation, renewal or discharge of an interim SOPO. In this action, the pursuer seeks renewal of the competent interim order which was granted on 1 March 2013 and expired on 4 April 2013".
6. The appellant does not appeal the decision of the sheriff on 27 June 2013 to continue the interim SOPOs in the main applications against both respondents. This is noteworthy standing the averments to which I have referred above.
7. The sheriff narrates in his note the procedure in these cases and specifically the procedure adopted on behalf of the appellant at the hearing before him on 27 June 2013. The appellant's agent lodged a minute of amendment in the main application whereupon the sheriff made an order for answers to the minute of amendment; assigned a rule 18.3 hearing and continued the interim SOPO previously granted but in the terms of the new amended crave with the interim SOPO to remain in place until the next calling of the case on 8 August. Furthermore, the appellant's agent's lodged the application which is the subject of the appeal. This summary application is against the same defender seeking renewal of the interim SOPO granted in the main application and that for a period of one year. The sheriff states:
"The granting of such orders is a serious matter which can have grave criminal consequences for the defender and having regard to (i) the terms of the order currently in force in the process before me (B48) (ii) the terms of the minute of amendment in that process and (iii) the live procedure in that process I accordingly dismissed the second application (B28/13) ex proprio motu."
It is against that decision that the appeal is marked. In the summary application relating to DDS. (B97/13) similar averments are made on behalf of the appellant relating to the purported continuations of the interim SOPO following 7 February 2013 and the new application seeks renewal of the interim SOPO granted in the main action by the sheriff in Edinburgh on 22 January 2013.
8. This, accordingly, is the background and context to this appeal. However the appeal is not directed at the merits of the applications but rather involves the interpretation of the relevant parts of the Sexual Offences Act 2003 Part II. In particular sections 104 to 112 of that Act.
Statutory Provisions
9. I was referred to the following statutory provisions:
"104 Sexual offences prevention orders: applications and grounds
(1) A court may make an order under this section in respect of a person ("the defendant") where any of subsections (2) to (4) applies to the defendant and -
(a) where subsection (4) applies, it is satisfied that the defendant's behaviour since the appropriate date makes it necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant;
(b) in any other case, it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant."
"105 SOPOs: further provision as respects Scotland
(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 believe by the applicant to be;
(ac) 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)"
"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."
"111 Appeals in relation to SOPOs and interim SOPOs: Scotland
In Scotland-
(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."
"112 Sections 104 and 106 to 109: Scotland
(1) Sections 104 and 106 to 109 apply to Scotland with the following modifications-
(c) references to a chief officer of police and to his police area are to be read, respectively, as references to the...
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