Rapist fails in appeal against conviction for breaching ‘unlawful’ sexual offences prevention order

The Appeal Court of the High Court of Justiciary ruled that while it would be “preferable” if a SOPO stated that it was for a specific period, if it did not specify a period then the “default position” was that it would continue “until further order” is made.

Sexual Offences Prevention Order

The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Turnbull, heard that the appellant William Stables, 79, was sentenced to 10 years’ imprisonment after being convicted in 2002 of rape and two charges of sexual intercourse with a girl under the age of 16 and indecent behaviour towards a girl aged between 12 and 16, in contravention of section 5(3) and section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995.

In 2008, prior to his anticipated release from custody, an application was made by the Chief Constable of Police Scotland to the sheriff at Aberdeen requesting a SOPO.

Section 104 of the Sexual Offences Act 2003 provides that a court may make a Sexual Offences Prevention Order where a person has been convicted of certain sexual offences and the court is satisfied that his behaviour makes it necessary to make such an order for the purpose of “protecting the public from serious sexual harm”. 

In terms of section 107, a SOPO prohibits its subject from doing anything which is described in the order and: “Has effect for a fixed period (not less than five years) specified in the order or until further order”.

The application asked for the SOPO to be applicable until further orders of the court, but the order, which prohibited the appellant from “entering or loitering in or around any children’s play area” and was made without opposition, made no mention of duration. 

Then, between 2010 and 2017 the appellant was convicted of breaching the SOPO on four occasions and was sentenced to periods of imprisonment. 

In relation to the present proceedings, he was indicted again on a further four charges of breaching the SOPO. 

‘Fundamentally null’

At a continued first diet on 30 January 2019, the appellant lodged a compatibility minute claiming that the SOPO, and hence the prosecution, was “invalid” because no duration was specified in the order.

It was argued that without either a defined duration or a statement that it was until further order, the SOPO was “fundamentally null”, but the sheriff repelled the minute and following a trial the appellant was convicted of three of the four alleged breaches and sentenced to 530 days.

The appellant appealed against his conviction to the High Court of Justiciary, arguing that the question for the court was whether an order, which was otherwise of indeterminate length, required to specify that it was “until further order”. 

The Parliamentary Explanatory Notes for the relevant section had stated that the period must be specified in the order, although it could be for an indefinite period. 

Thus Parliament had intended that all SOPOs should state the period of their duration, even if it was indeterminate.

Relying on the England and Wales Court of Appeal case of Aldridge v R [2012] EWCA Crim 2151, it was submitted that any defect in a SOPO would render it “unlawful and unenforceable”. 

The appellant also referred to the case of The Queen v CK [2009] NICA 17, in which the Court of Appeal in Northern Ireland stated that it was preferable to specify the period, or alternatively to state that it was to be pending further order, rather than leaving the matter in terms of a default position.

‘Default position’

However, the judges refused the appeal after rejecting the argument that the failure to specify a period rendered the order null.

Delivering the opinion of the court, the Lord Justice General said: “The court agrees with the court in The Queen v CK [2009] NICA 17 (Kerr LCJ, delivering the opinion of the court, at para 40), that it would be preferable if a SOPO expressly stated either that it was for a fixed period or that it was until further order. However, that does not carry with it an implication that a failure to include the words ‘until further order’ renders the order fundamentally null. 

“On the contrary, so far as the principle of certainty is concerned, if a SOPO does not specify a fixed period, the default position, which is readily ascertainable from the legislation, is that it will continue until further order. That was the position in this case.” 

Lord Carloway added: “If the appellant had wished to challenge the SOPO being made for an indefinite period, as the Chief Constable had requested, he had the opportunity to appear before the sheriff court at the hearing on the summary application and oppose the indefinite nature of any order. If dissatisfied with the decision, he could have appealed in the civil process.”