Criminal Appeal Court refuses appeal against ‘oppressive’ restrictions on internet use

Lord Carloway
Lord Carloway

A man who was given a community payback order with restrictions on his internet use after being convicted of an attempt at “communicating indecently with an older child” has failed in an appeal against sentence.

The appellant argued that the sheriff’s intention to restrict his “misuse” of the internet amounted to a “blanket ban” because of the way in which the requirements had been interpreted by the supervising officer.

Refusing the appeal, the Criminal Appeal Court said there was “no basis” for holding that it the conditions were being operated in an “unduly restrictive” manner.

The Lord Justice Clerk, Lord Carloway, sitting with Lady Paton and Lord Menzies, heard that in January 2015 the accused Alistair Ross pled guilty to an attempt at “communicating indecently with an older child”, contrary to section 34(1) of the Sexual Offences (Scotland) Act 2009.

Over a five-day period in March 2014 he repeatedly sent written sexual communications over the internet to a person whom he believed to be a 13-year-old girl, but who was in fact a covert internet investigator.

He was sentenced the following month to a CPO which included a conduct requirement that he should not own, use or have in his possession any internet enabled device, or use any type of social media, without the prior approval of his supervising officer.

The basis of the appellant’s appeal was that the sentencing sheriff had intended him to have use of the internet but that any “misuse” should be prevented.

However, it was submitted that the intention had been “frustrated” by the manner in which the requirements had been interpreted by the supervising officer.

In practice he had not had any access to the internet since the CPO was imposed.

If the sheriff had intended to impose a conduct requirement to the effect that the appellant would only be granted access to the internet on a gradual and restricted basis, such a conduct requirement was “unduly restrictive and oppressive”.

The practical application of the interpretation by the supervising officer had had the effect of a “blanket ban” on the appellant’s use of the internet for over five months, which was “impermissible and disproportionate”, it was argued.

Refusing the appeal, the judges observed that the terms of the requirement were such that, whether or not the appellant should have access to the internet, internet enabled devices, social media or any other communication tools was “a matter for the appellant’s supervising officer” and that in practice, the requirement appeared to be “working well”.

Delivering the opinion of the court, the Lord Justice Clerk said: “There is no reason to conclude that the sheriff in this case was unaware of the way the restriction was operated locally. There is also no basis for holding that it is doing so in an unduly restrictive way. In these circumstances, the imposition of the CPO with the conduct requirement complained of cannot be seen to be excessive.”

However, Lord Carloway added that the appeal raised “a point of general importance in relation to the extent to which a court should in effect delegate significant matters of this type to the discretion of supervising officers”.

He continued: “If, for example, a sheriff did not envisage, as part of his requirement, a complete prohibition on internet use for, say, six months, it would be unfortunate if, in practice, that is what happens. Set against that, there is an imperative not to have sheriffs micro-managing common requirements which are being properly supervised on the ground by skilled and competent social workers.

“It may be sufficient for present purposes to say that, if sheriffs are imposing requirements which do allow a large amount of discretion to supervising officers in important aspects of daily life, such as internet access, they must be confident that the practices being operated in their sheriffdoms are generally as they expect them to be. No doubt, in that context, they will familiarise themselves with what is involved and will consider any representations properly made to them. They will be able to reflect on matters in the light of experience.

“If there is a potential problem in a particular sheriffdom, the sheriff will undoubtedly require to spell out the conditions of any requirement in greater detail; perhaps making it clear in a given case that the offender is to be given some access to the internet in a particular manner each day, week or month. He may request details of any proposed programme for internet access prior to making a requirement, giving due allowance to the general need for any programme to be tailored to the particular needs of, and risk presented by, the particular offender.”

He also said that in exceptional cases the sheriff may decide that the CPO should be the subject of a “progress review”, adding that an offender could also apply to the court for a variation of the CPO if he is concerned about the manner in which a requirement is being interpreted.

© Scottish Legal News Ltd 2020

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