BILL OF ADVOCATION BY MACKENZIE FRED ANDREW HORNER AGAINST HMA [2024] ScotHC HCJAC

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2024] HCJAC 18

HCA/2024/000154/XC

Lord Pentland

Lord Matthews

Lady Wise

OPINION OF THE COURT

delivered by LORD PENTLAND

Bill of Advocation

MACKENZIE FRED ANDREW HORNER

Complainer

against

HIS MAJESTY'S ADVOCATE

Respondent

Complainer: Ogg, sol ad; Pollock Ross & Co (Stirling)

Respondent: Prentice, K.C., AD; Crown Agent

2 May 2024

Introduction

[1]

This case provides an opportunity for the court to provide guidance on the

procedure which should be followed where a person, who has been convicted of taking and

distributing indecent images of children, wishes to invite the court to determine that it is

inappropriate for him or her to become subject to the notification requirements which would

otherwise be imposed by section 80 of the Sexual Offences Act 2003.

The offence and the conviction

[2]

On 7 November 2023 the complainer pled guilty to a section 76 indictment at Falkirk

Sheriff Court. The single charge was one of taking or permitting to be taken indecent

photographs of children contrary to section 52(1)(a) of the Civic Government (Scotland)

Act 1982, as amended. The period of the libel was averred to have been between 9 February

2018 and 24 June 2022. During that period the complainer was between the ages of 12

and 16. By the date of his conviction he was 18. The child referred to in the charge was

under 16 years of age at the time of the offence.

The Bill of Advocation and the complainer's submissions

[3]

The basis of the challenge brought by the complainer in the Bill is that the Sheriff

ordered on 7 November 2023 that he be made subject ad interim to the notification

requirements under Part 2 of the Sexual Offences Act 2003. It is said that an interim order of

this nature was not a competent one and that it should accordingly be quashed.

[4]

In the Bill and in his written and oral submissions to this court the complainer set out

his understanding of what happened at the hearing on 7 November 2023. Having heard a

narrative of the circumstances giving rise to the offence, the Sheriff deferred sentence to

5 December 2023 for the preparation of a criminal justice social work report and a restriction

of liberty order assessment. According to the complainer, the Sheriff ordered that he be

made subject ad interim to the notification requirements provided for by the Sexual Offences

Act 2023. The matter of whether the complainer was to be "placed on the register" was to be

readdressed at the hearing on 5 December 2023.

[5]

The Bill set out that at the deferred sentence hearing on 5 December 2023, having

heard the plea in mitigation, the Sheriff imposed a community payback order with a

supervision requirement for 3 years and 200 hours of unpaid work. It was submitted at that

hearing that, having regard to the terms of paragraph 45 of Schedule 3 to the 2003 Act, as the

child was under 16 at the time of the offence; the complainer was under 18 at that time; and

the sentence was not 12 months imprisonment or more, paragraph 45(a) did not apply but

paragraph 45(b) required to be considered by the Sheriff. The latter provision permits the

court to determine that it is appropriate (and by necessary implication that it is not

appropriate) that the offender be regarded as a person who has, for the purposes of Part 2 of

the 2003 Act, committed an offence under section 52 of the 1982. Having considered the

submissions made, the Sheriff was satisfied that it was not appropriate for the complainer to

be regarded as such a person and accordingly she determined that the complainer would

not be subject to the notification requirements under the 2003 Act. A review of the

community payback order was fixed for 30 January 2024.

[6]

The review report prepared for the hearing on 30 January 2024 disclosed that the

complainer was co-operating with the community payback order. On that date a further

review was fixed for 16 July 2024. The Bill explained that prior to the first review the police

advised the social work department that as far as they were concerned the notification

requirements under the 2003 Act were still in place despite the decision of the Sheriff on

5 December 2023. The police were not prepared to remove the notification requirement until

the court minute of 7 November 2023 making the complainer subject to the notification

requirements ad interim was amended. On 8 February 2024 the Sheriff Clerk at Falkirk

contacted the Procurator Fiscal and the complainer's solicitor and advised them of the

position and queried with parties if the minute of 7 November 2023 could be amended in

terms of section 300A of the Criminal Procedure (Scotland) Act 1995.

[7]

The complainer observed in his submissions that the Sheriff states in her report to

this court that the complainer ceased to be subject to the notification requirements on

5 December 2023 by virtue of her order on that date. Logically, according to the complainer,

that ought to be the case, but unfortunately the police had taken a different view on the

matter. It was submitted that, in any event, the Sheriff had no statutory power under the

2003 Act to make an order ad interim.

[8]

With regard to the mechanism to remedy the problem it was submitted that the

decision of the Sheriff on 7 November 2023 to make the complainer subject to the

notification requirements ad interim did not fall within the definition of "procedural

irregularity" in terms of section 300A; so that section could not be invoked. The only

method for challenging an incompetent order under the 2003 Act made ad interim was by an

appeal (Moneagle v PF Elgin 2018 SLT (Sh Ct) 13). No other method of rectifying the Sheriff's

decision was available under solemn procedure other than a Bill of Advocation.

The Crown's submissions

[9]

In a brief written submission the Crown took the view that the complainer had been

made subject to an incompetent interim order and invited the court to pass the Bill. In the

course of oral argument the Advocate Depute confirmed that there had been no mention

made at the hearing on 7 November 2023 of paragraph 45 of Schedule 3 to the 2003 Act.

The Sheriff's report

[10]

The Sheriff explained in her report to this court that at the hearing on 7 November

2023 the complainer pled guilty to the section 76 indictment. The Procurator Fiscal Depute

moved for sentence and provided a narrative of the facts giving rise to the offence. The

Sheriff deferred sentence. No submission was made in respect of paragraph 45 of

Schedule 3 to the 2003 Act. The recording had been checked on the point. The complainer

had, according to the Sheriff, been made subject to the notification requirements ad interim

on 7 November 2023.

[11]

The Sheriff went on to explain that when the complainer appeared for sentencing on

5 December 2023 she was satisfied that it was not in the public interest for him to be subject

to the notification requirements. She therefore:

"declared in terms of section (sic) 45(b) of Schedule 3 of the Sexual Offences

(Scotland) Act that the complainer was not subject to notification requirements."

According to the Sheriff, the complainer ceased to be subject to the notification requirements

on 5 December 2023 by virtue of her order.

Analysis and decision

[12]

Having had the opportunity to consider the minutes (and other documents)

recording events at the hearings in the Sheriff Court, we are satisfied that the Bill, the

Crown's submissions and the Sheriff's report each proceeds on a misunderstanding of the

applicable legal framework and of what in fact happened in this case.

[13]

The minute of the hearing on 7 November 2023 states that the court certified in open

court in terms of section 92(2) of the Sexual Offences Act 2003 "that the accused convicted of

the offence (sic); that the offence is a sexual offence to which Part 2 of that Act applies." On

the same date a certificate was issued and signed by the clerk of court certifying that the

complainer had been convicted of the offence under section 52(1)(a) of the 1982 Act; that the

offence was a sexual offence to which Part 2 of the 2003 Act applied; and that the court so

stated in open court on that date. A police officer signed the certificate confirming that the

principal was given to the complainer, who in turn signed to acknowledge that he had

received the principal document. The complainer was also issued with a notice explaining

what he must do in order to comply with the notification requirements.

[14]

Section 80 of the 2003 Act provides inter alia as follows:

"A person is subject to the notification requirements of ... Part (2) for the period set

out in section 82 ("the notification period") if

(a) he is convicted of an offence listed in Schedule 3

..."

[15]

Section 82 sets out the applicable notification periods for various categories of

offender. For example, a person who has been sentenced to imprisonment for a term of 30

months or more is to be subject to a notification period for an indefinite period from the

"relevant date", which will normally be the date of the conviction.

[16]

Section 92 of the 2003 Act provides inter alia as follows:

"Certificates for purposes of Part 2

(1)

Subsection (2) applies where on any date a person is--

(a)

convicted of an offence listed in Schedule 3;

...

(2)

If the court by or before which the person is so convicted or found--

(a)

states in open court--

(i)

that on that date he has been convicted ... and

(ii)

that the offence in question is an offence listed in

Schedule 3, and

(b)

certifies those facts, whether at the time or subsequently, the

certificate is, for the purposes of this Part, evidence (or, in

Scotland, sufficient evidence) of those facts."

[17]

Schedule 3 to the 2003 Act specifies the sexual offences which are relevant for the

purposes of Part 2 of the Act. Paragraph 45 of Schedule 3 to the 2003 Act is in the following

terms:

"An offence under section 52 of the Civic Government (Scotland) Act 1982 (c. 45)

(taking and distribution of indecent images of children) if--

(a)

the child was under 16 and the offender--

(i)

was 18 or over, or

(ii)

is or has been sentenced in respect of the offence to

imprisonment for a term of at least 12 months, or

(b)

in imposing sentence or otherwise disposing of the case, the court

determines that it is appropriate that the offender be regarded, for the

purposes of Part 2 of this Act, as a person who has committed an

offence under this paragraph

[18]

The court minute of the hearing on 5 December 2023 states that the court, having

heard parties, "did not make the offender subject to the sexual offences notification

requirements".

[19]

A number of points are clear. First, contrary to the understanding of parties and, it

would appear, of the Sheriff there was no interim order made. While we acknowledge that

the Sheriff states in her report that on 7 November 2023 the complainer was "made subject

to notification requirements ad interim", this is not consistent with any of the court minutes,

the certificate or the notice issued to the complainer on that date. Such an interim order

would have been incompetent and we see no reason to suppose that the court made an

incompetent order in circumstances where the official court records are clearly to the

contrary effect. We would observe also that while the Bill proceeds on the basis that the

Sheriff "ordered" that the complainer be subject ad interim to the notification requirements,

this formulation betrays a misunderstanding of the effect of the 2003 Act. The statutory

scheme contained in the 2003 Act does not provide that the court should "order" that an

offender be subject to the notification provisions. Becoming subject to the notification

requirements is a consequence which follows automatically by the operation of section 80 of

the 2003 Act.

[20]

Secondly, section 92 empowers the court to certify that an offender has been

convicted of a sexual offence listed in schedule 3, but there is no obligation on the court to

issue such a certificate at the time of conviction. It would make no sense to do so where the

court was made aware that the offender intended to argue (or wished to reserve the right to

argue) in the light of the sentence ultimately imposed that it was inappropriate to determine

that he be regarded as a person who has committed an offence under section 52 of the 2003

Act. The purpose of certification is to provide an authoritative and self-proving record of

the fact that the offender has been convicted of a sexual offence listed in Schedule 3. In the

event that it is disputed that he has been convicted of such an offence then clearly it would

be inappropriate to certify that he had been until the issue had been resolved.

[21]

Thirdly, there is nothing in the 2003 Act permitting or authorising the making of an

interim certification or interim notification order (Moneagle v PF Elgin 2018 SLT (Sh Ct) 13,

para [12]). The minute of 7 November 2023, the certificate of the same date and the notice

issued to the complainer put it beyond doubt that he was in fact as of that date subject to the

notification requirements provided for by the 2003 Act. There was nothing interim or

provisional about the effect of the certification made by the Sheriff on that date. It was a

final certificate and could not subsequently be recalled or somehow set aside by the Sheriff,

as she purported to do on 5 December 2023.

[22]

Fourthly, the procedure adopted by the Sheriff at the hearing on 5 December 2023

was incompetent. Having previously made a notification certification, it was not open to her

to issue a new order stating that the court "did not make the offender subject to the ...

notification requirements." What had previously been done by way of issuing a certification

could not simply be undone by means of an ad hoc rewriting of history.

[23]

Finally, the correct procedure for the Sheriff to have followed had the point been

raised with her on 7 November 2023 (which it was not, but clearly should have been) would

have been to refrain from making a certification. She would then have been in a position to

hear submissions at the diet of deferred sentence on whether to make a determination under

paragraph 45(b) of Schedule 3 to the 2003 Act unencumbered by a previously issued

certificate.

[24]

Despite the procedural irregularities which have given rise to unnecessary confusion

and difficulties for the complainer, the police and no doubt others, it seems clear that the

Sheriff's underlying intention was that the complainer should not be subject to the

notification requirements allowed for by the 2003 Act. The effect of the certificate she made

on 7 November 2023 is that the complainer is currently deemed to be subject to those

requirements, as Police Scotland was correct to recognise. To put matters right and to give

effect to the substance of the Sheriff's decision we shall pass the Bill to the extent of setting

aside the certification made by the Sheriff on 7 November 2023 that the complainer had been

convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003.

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