APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Emslie Sheriff Principal Lockhart	[2012] HCJAC 59 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 the Article 8 and, accordingly, the Lord Advocate could not accept such a plea or, presumably, prosecute contraventions of the section in the knowledge of this prospective result.

[6] There are three problems with this argument, each of which is sufficient to reject it. First, this case was prosecuted under summary procedure and there was no requirement for the Procurator Fiscal to accept any guilty plea tendered. The minutes reflect the fact that there was no such formal acceptance. Rather the Sheriff would have confirmed the plea with the appellant personally and proceeded to hear the prosecutor on the circumstances of the offence. The act of the Lord Advocate complained of does not therefore exist.

[7] Secondly, the argument raises a devolution issue and is accordingly tendered late in terms of the Act of Adjournal (Criminal Procedure Rules) 1996, Rule 40.3. If it had been intended to advance a point of this nature in a summary prosecution, notice required to be given prior to the pleading diet. Rule 40.5 provides that no party can raise a devolution issue late other than on cause shown. A devolution issue was taken in respect of other matters in this case and the Court does not consider that cause has been shown to allow this different devolution issue to be raised at the appellate stage.

[8] Thirdly, in terms of Hay v HM Advocate [2012] HCJAC 29 (LJ-C (Gill) at paragraph [53]) the notification requirements contained in the 2003 Act are European Convention compliant. It is therefore difficult, if not impossible, to contend that, if the Act is itself Convention compliant, the acceptance of a plea of guilty, when the consequences of that Act are to follow, is itself somehow a contravention of the Convention. For all these reasons the Court will refuse to pass the Bill.

[9] The Court, secondly, has before it an appeal against sentence. The contention is that the sentence was excessive and inappropriate because, it being competent only as a direct alternative to custody, this was not an offence which might have attracted a custodial sentence having regard to the mitigation relative to the appellant's knowledge of the age of the complainer, the appellant's status as a first offender, and his personal circumstances including his regular employment.

[10] The court is unable to accept the contention that the sentence was either excessive or inappropriate. It has to be borne in mind that, whatever the appellant's beliefs in relation to the complainer's age might have been, the circumstances involved him stopping his car in the hours of darkness to pick up a girl who was a complete stranger to him. She turned out to be aged 14 and vulnerable, as might, perhaps, have been anticipated. He promptly took her to a flat, which he knew to be vacant. He gave her alcohol. Having regard to that conduct and the criminal act which then occurred, the court agrees that this was an offence which the sheriff was entitled to consider might merit a custodial sentence. Having regard to these factors, and indeed the actual age of the appellant, the sheriff's selection of community service as a direct alternative to custody can and must only be seen as reasonable. This appeal is refused.

JJ