William McKenzie Newland Stables v. Her Majesty’s Advocate [2019] HCJAC 89

Note of appeal against conviction:- In January 2002 the appellant, now aged 79 years, was convicted of two charges of having sexual intercourse with a girl under 16 and indecent behaviour towards a girl aged between 12 and 16 contrary to sections 5(3) and 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. The appellant was also convicted of a charge of rape. The appellant was sentenced to 2 years imprisonment in relation to the statutory offences and 10 years in relation to the rape charge. On 1 October 2008, prior to his release from prison, an application was made by the Chief Constable to the sheriff at Aberdeen requesting a Sexual Offences Prevention Order under section 104 of the Sexual Offences Act 2003, which prohibited the appellant from inter alia entering or loitering in or around any children’s play area. The order was granted without opposition with no reference to the duration of the order. Between 2010 and 2017 the appellant was convicted of breaching the SOPO on four occasions and was sentenced to terms of imprisonment. In relation to the present proceedings the appellant was indicted to a first diet at Aberdeen Sheriff Court on 3 January in relation to four further breaches of his SOPO. On 30 January 2019, at a continued first diet, a compatibility issue minute was lodged on behalf of the appellant in which it was contended that the SOPO and the present prosecution was invalid on the basis that no duration was specified in the original SOPO in 2008. It was submitted that it was the intention of Parliament that a SOPO should be for a specified period, failing which, it should be made clear that it was until further order and without such a statement the SOPO was fundamentally null. The sheriff repelled the minute on the grounds that she considered that common sense dictated that it was unnecessary for the words “until further order” to be specified in a SOPO. The sheriff noted that section 107(1)(b) of the 2003 Act provided that a SOPO had effect for a fixed period if specified or otherwise until further order. On 20 February 2019, after proceeding to trial, the appellant was convicted of three of the charges and sentenced to 530 days imprisonment. The appellant appealed against his conviction it being submitted that the question for the court was whether it was necessary to specify that it was “until further order” where no specific period for the duration of the order was included in the SOPO. It was submitted that the Parliamentary Explanatory Notes made clear that Parliament had intended that all SOPOs should state the period of their duration even if it was indeterminate and any defect in a SOPO would render it unlawful and unenforceable. On behalf of the Crown it was submitted that section 107 imposed no statutory requirement to include the words “until further order” and there was no requirement for a duration to be specified in the order other than in those cases where the order was for a fixed period. Here the court refused the appeal. The court agreed with the Court of Appeal in Northern Ireland in The Queen v CK [2009] NICA 17 that it would be preferable if it was expressly stated in the SOPO that it was for a fixed period or that it was until further order, however, the failure to include the words “until further order” did not render the SOPO unlawful and unenforceable. The court observed that if the appellant had wanted to challenge the SOPO being made for an indefinite period he had the opportunity to oppose the indefinite nature of the order sought at the hearing on the summary application at the sheriff court in 2008.