Alastair George Ross v. Her Majesty’s Advocate [2015] HCJAC 80

Note of appeal against sentence:- On 13 January 2015 the appellant pled guilty on indictment to a contravention of section 34(1) of the Sexual Offences (Scotland) Act 2009, namely, attempting to communicate with an older child by repeatedly sending written communications via the internet to a 13 year old girl who was actually a ‘Covert Internet Investigator’. On 19 February 2015 the appellant was sentenced to a Community Payback Order for three years together with a requirement to complete 210 hours of unpaid work in the community and a conduct requirement was also imposed relating to placing certain restrictions in relation to the appellant’s use of the internet. The appellant appealed against the sentence imposed in so far as it related to the internet restrictions placed upon him. It was submitted on the appellant’s behalf that the appellant had not had access to the internet since the imposition of the CPO as the supervising officer had incorrectly applied the conditions that had been imposed. It was submitted that, in effect, the application of the conduct requirement by the supervising officer had the result of a blanket ban on the appellant’s use of the internet for the first five months and was overly restrictive, oppressive and disproportionate having regard to R. v. Smith [2011] 1 W.L.R. 1316. An alternative condition was proposed by the appellant’s solicitor advocate which would enable the appellant to own and use a mobile phone and a computer approved by his supervising officer provided the browsing history was not deleted and the supervising officer could inspect the device on request. On behalf of the Crown it was submitted that the conduct requirement imposed was one that was based on the needs of the appellant and the risks that he presented. Here the court refused the appeal. The court considered that the conduct requirement was working well. This was not a case in which the restrictions imposed amounted to a blanket prohibition on internet access and that any access the appellant had was a matter for his supervising officer. The court observed, however, that the appeal did raise a point of importance in relation to the delegation of important matters by the court to the discretion of a supervising officer. The court noted that it is important that when sheriffs are imposing such conditions they are aware of the practice being imposed in their sheriffdoms and where there is a potential for problems it may be necessary for the imposition of any conduct requirement to be specified in greater detail.