McKenzie Fred Andrew Horner v. His Majesty’s Advocate [2024] HCJAC 18

Bill of Advocation:- On 7 November 2023 the complainer pled guilty to a section 76 indictment at Falkirk Sheriff Court in relation to a charge of taking or permitting to be taken indecent photographs of children contrary to section 52(1)(a) of the Civic Government (Scotland) Act 1982. During the period of the libel of the charge to which the complainer pled guilty he was aged 12-16 and 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 Sheriff ordered on 7 November 2023 that the complainer be made subject ad interim to the notification requirements under Part 2 of the Sexual Offences Act 2003. On 5 December 2023 at the deferred sentencefollowing the plea in mitigation on behalf of the complainer, the Sheriff imposed a community payback order with a supervision requirement for 3 years and 200 hours of unpaid work. At the deferred sentence it was submitted on behalf of the complainer having regard to the terms of paragraph 45 of Schedule 3 to the 2003 Act:- (1) the child was under 16 at the time of the offence; (2) the complainer was under 18 at that time; and (3) the sentence was not 12 months imprisonment or more, that paragraph 45(a) did not apply and paragraph 45(b) required to be considered by the Sheriff. Following submissions the Sheriff was satisfied that it was not appropriate for the complainer to be subject to the notification requirements under the 2003 Act. The police had contacted 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 and they 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. It was subsequently contended on behalf of the complainer 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 and the only method for challenging an incompetent order under the 2003 Act made ad interim was by an appeal via a Bill of Advocation and the court was invited to pass the Bill. It was submitted on behalf of the Crown that the complainer had been made subject to an incompetent interim order and invited the court to pass the Bill. Here the court outlined the procedural misunderstanding that parties and the Sheriff had proceeded under. The court highlighted the following points:- (a) whilst parties had proceeded on the understanding that on 7 November 2023 the complainer was “made subject to notification requirements ad interim” which is inconsistent with the court minutes the certificate or the notice issued to the complainer on 7 November as the 2003 Act but rather does not provide that the court should “order” that an offender be subject to the notification provisions as becoming subject to the notification requirements is a direct consequence following automatically on the operation of section 80 of the 2003 Act; (b) 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 as in due course, for example, there may be an argument advanced on behalf of the convicted person that it was inappropriate to determine that he was to be regarded as a person who has committed an offence under section 52 of the 2003 Act; (c) there is nothing in the 2003 Act permitting or authorising the making of an interim certification or interim notification order and a final certificate and could not subsequently be recalled by the Sheriff as she purported to do on 5 December 2023; (d) the Sheriff’s purported recall of the interim order on 5 December 2023 was incompetent following upon the making of the notification certificate on 7 November; and (e) the procedure which ought to have been followed on 7 November 2023 was to refrain from making a certification and for the Sheriff to hear submissions in relation to the question of whether to make a determination under paragraph 45(b) of Schedule 3 to the 2003 Act. Here the court gave effect to what was the Sheriff’s ultimate intention, namely, not to make the complainer subject to the notification requirements allowed for by the 2003 Act and passed the Bill and set 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.