In The Appeal By Ian Hay+in Appeal By Stated Case By Ian Hay V. Her Majesty's Advocate+procurator Fiscal, Aberdeen
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Justice Clerk,Lord Osborne |
| Judgment Date | 15 February 2012 |
| Neutral Citation | [2012] HCJAC 28 |
| Court | High Court of Justiciary |
| Published date | 17 February 2012 |
| Docket Number | XC317/10 |
| Date | 15 February 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Bracadale Lord Osborne | [2012] HCJAC 28 Appeal No: XC317/10 XJ832/10 OPINION OF THE LORD JUSTICE CLERK (1) In the Appeal by IAN HAY Appellant; against HER MAJESTY'S ADVOCATE Respondent: (2) In the Appeal by Stated Case by IAN HAY Appellant; against PF ABERDEEN Respondent: _______ |
For the appellant: Brown QC, M Mackenzie; Burn & McGregor, Aberdeen
For the Crown: Stewart, QC AD, McGuire; Crown Agent
15 February 2012
Introduction
[1] These are two of seven conjoined appeals relating to the notification provisions of the Sexual Offences Act 2003. The appeals raise general questions as to the circumstances in which the procedure of notification of a convicted offender is necessary or appropriate. For a proper understanding of the appeals, I shall begin by tracing the background to the legislation and setting out the relevant provisions.
The legislation
Background
[2] The Sex Offenders Act 1997 (the 1997 Act) introduced a requirement for certain categories of sex offenders to notify the police of their names and addresses. The Act made it an offence for an offender to fail to register this information or to fail to update it. The period of time for which this requirement applied varied according to the seriousness of the offence. In some cases it was indefinite. The purpose of this legislation was to provide the police with up-to-date information on the whereabouts of sex offenders and thereby to allow better assessment and management of the risk that they presented to the public.
[3] In 1998, in light of a report by the Chief Inspector of Social Work on the supervision of sex offenders, the Scottish Executive appointed an Expert Panel on Sex Offending chaired by Lady Cosgrove. In its report Reducing the Risk: Improving the Response to Sex Offending (2001) (the Cosgrove Report) the Panel made several recommendations for the better management and supervision of sex offenders. It proposed that the schedule of offences to which the notification requirements applied should be extended.
[4] The Panel also proposed that on a conviction for a non-scheduled offence, the court should have a discretionary power to make a notification order against the offender. This was its proposal.
"We also consider that where an offender is convicted of any offence which is not an offence specified in the Schedule but where the evidence discloses that there was a significant sexual element in the offender's behaviour, such as to warrant additional measures to protect the public from the risk posed by the offender, the court should have a discretionary power to order notification, subject to a right of appeal against such an order by the offender" (p 60).
The Panel's recommendation was as follows:
"The requirement to provide notification under the Sex Offenders Act 1997 should be extended to include any offender convicted of any crime containing a sexual element, at the discretion of the sentencing judge."
This recommendation was implemented in the Sexual Offences Act 2003.
The Sexual Offences Act 2003 (the 2003 Act)
[5] Schedule 3 to the Act sets out the list of offences conviction of which results in notification for the periods specified in the Table set out in section 82. The Schedule lists certain specific offences under the law of Scotland (paras 36-59). New offences have been added by amendment from time to time. I shall refer to these specified offences collectively as the "specific list." Conviction of an offence on the specific list automatically leads to notification, subject to minor exceptions such as public indecency (para 41A).
[6] In addition to the specific list, paragraph 60 implements the proposal of the Cosgrove Report that I have quoted by providing for notification on conviction of an otherwise non-scheduled offence in the following circumstances:
"... if the court, in imposing sentence or otherwise disposing of the case, determines for the purposes of this paragraph that there was a significant sexual aspect to the offender's behaviour in committing the offence."
The Sexual Offences Act 2003 (Commencement) (Scotland) Order 2004 (SSI No 138)
[7] The 2004 Order brought into force on 1 May 2004 those provisions of the 2003 Act that extend to Scotland.
The remedial orders of 2010 and 2011
[8] On 21 April 2010 in R (F) v Secretary of State for the Home Department, ([2011] 1 AC 331) the Supreme Court made a declaration under section 4 of the Human Rights Act 1998 that "the indefinite notification requirements in section 82(1) of the Sexual Offences Act 2003 are incompatible with article 8 of the European Convention on Human Rights because they do not contain any mechanism for the review of the justification for continuing the requirements in individual cases."
[9] To remove this incompatibility, the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010 (SSI No 370) amended the 2003 Act with effect from 25 October 2010, by inserting sections 88A to 88I into the 2003 Act. The provisions of that order were revoked and re-enacted with amendments by the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011 (SSI No 45).
[10] The new sections provide a mechanism for the periodic review of the justification for continuing the notification requirements where the offender is subject to the notification requirements for an indefinite period. No provision exists for such review where, as in the present cases, the offender is subject to the notification requirements for a finite period.
The convictions and the disposals
(1) Conviction on indictment and the disposal
[11] On 28 January 2010 at Aberdeen sheriff court the appellant pled guilty on indictment to the following charges:
"(1) on 3 November 2008 at Kingsway, Cruikshank Crescent, Hillocks Way, Netherhills Avenue, all in Aberdeen and elsewhere in Aberdeen, you ... did conduct yourself in a disorderly manner, repeatedly follow ... [complainer A] aged 14 years of age, ..., an unaccompanied female, repeatedly stare at her and nod at her, place her in a state of fear and alarm and commit a breach of the peace;
(2) between 1 January 2009 and 31 January 2009 both dates inclusive at Victoria Street and Riverview Drive, both in Dyce, Aberdeen, you ... did conduct yourself in a disorderly manner, repeatedly follow unaccompanied females in your motor car, repeatedly stare at them, repeatedly gesture to the lieges to approach you whilst in your motor car, place them in a state of fear and alarm and commit a breach of the peace;
(3) between 1 January 2009 and 11 March 2009 both dates inclusive at Netherview Avenue and Victoria Street, both in Dyce, Aberdeen and elsewhere in Aberdeen, you ... did conduct yourself in a disorderly manner, repeatedly walk past ... [complainer D], aged 15 years of age, ..., an unaccompanied female, follow her in a motor vehicle, repeatedly stare at her and nod at her, place her in a state of fear and alarm and commit a breach of the peace;
(4) between 5 March 2009 and 26 March 2009 both dates inclusive at Netherview Avenue and Victoria Street, both in Dyce, Aberdeen and elsewhere in Aberdeen, you ... did conduct yourself in a disorderly manner, repeatedly follow unaccompanied females in your motor car, repeatedly stare at them, place them in a state of fear and alarm and commit a breach of the peace
(5) you ... being an accused person and having been granted bail on 23 March 2009 at Aberdeen Sheriff Court in terms of the Criminal Procedure (Scotland) Act 1995 and being subject to the condition inter alia that you do not approach or attempt to approach or contact ... [complainer A] did on 26 April at George Street Aberdeen fail without reasonable excuse to comply with said condition in respect that you did approach and follow said ... [complainer A]
CONTRARY to the Criminal Procedure (Scotland) Act 1995, Section 27(1)(b);
(6) on various occasions between 27 April 2009 and 1 May 2009 both dates inclusive at Asda superstore, Riverside Drive, Bankhead Avenue, Victoria Street and Stoneywood Road all in Dyce, you ... did conduct yourself in a disorderly manner, repeatedly drive past unaccompanied females in your motor car, repeatedly follow them in your motor car, repeatedly stare at them, place them in a state of fear and alarm and commit a breach of the peace ...
(7) on 1 May 2009 at Netherview Avenue, Dyce, Aberdeen you ... did conduct yourself in a disorderly manner, follow an unaccompanied female in your motor car, repeatedly stare at her, place her in a state of fear and alarm and commit a breach of the peace ...
For each of these charges a bail aggravation was libelled.
The circumstances
[12] All of the charges involved girls aged between 14 and 16, none of whom knew the appellant.
[13] On the date libelled in charge (1) complainer A was delivering newspapers. The appellant drove slowly past and looked at her. Then he drove slowly in front of her as she made her deliveries. He stared and nodded at her. The witness sent a text message to her mother telling her that she was scared because she thought that she was being followed. She asked her mother to meet her. When her mother arrived the appellant drove off. The complainer was visibly shaken.
[14] On a date within the period libelled in charge (2) complainers B and C were walking in the street when the appellant drove past. He repeatedly waved and gestured at them to come over. He stopped his car further down the road and then drove after them. Both girls were frightened and ran into the grounds of a nearby school.
[15] On a date within the period libelled in charge (3) complainer D was standing alone at a bus stop when the appellant approached her. He nodded and stared at her as he passed. This happened on four further occasions. Later, when he was in his car the appellant stared at her, gestured that she should come over and nodded as he drove past. She was by now afraid of the appellant and was...
To continue reading
Request your trial
- McGuire (James) v Dunn
- Ashraf (Shehzad) v HM Advocate
-
Philip Allan Main Against Scottish Ministers
...consideration of the Convention rights issues by Parliament. [16] The decision of the High Court of Justiciary in Hay v HM Advocate 2014 JC 19, which held that a 10 year notification period was Convention compliant, was not binding. It was inconsistent with R (F) (supra). The reasoning in H......
-
R (Irfan) v Secretary of State for the Home Department
...to say anything about the 15 year qualification period, one way or the other. 17 The third point to note is that in Hay v Lord Advocate [2012] HCJAC 28, which also concerned the Sex Offenders Register, the High Court of Justiciary (Lord Justice Clerk, Lord Bracadale and Lord Osborne) conclu......