Sheriff failed to take into account effect of notification requirements in sentencing sex offender

The Sheriff Appeal Court ruled that the notification requirements imposed for an offence which the sheriff considered to be “at the lower end of the scale” was “unnecessary”.

Appropriate sentence

Sheriff Principal Craig Turnbull, sitting with Appeal Sheriff Nigel Ross, heard that the appellant Neil Cooper was convicted after trial of a contravention of section 3 of the Sexual Offences (Scotland) Act 2009.

The sheriff obtained a Criminal Justice Social Work Report with a view to imposing a community payback order, comprising a supervision requirement.

But when determining the appropriate sentence to impose, the sheriff formed the view that the offence fell at the lower end of the scale for offences of this type and he did not consider that it was of sufficient severity to justify making a community payback order.

The sheriff determined that the appropriate disposal for the appellant, who was in employment and had no previous convictions, was to impose a fine of £300.

Notification requirements

However, a conviction under section 3 of the 2009 Act has the consequence of triggering the notification requirements of the Sexual Offences Act 2003.

While registration as a sex offender is not a sentence, the effect of the notification requirements is a matter to which a court can have regard to when selecting an appropriate sentence.

But in the present case the sheriff proceeded on the basis that as Parliament had determined what the consequential notification period would be he could have “no regard” to the length of that period when imposing what he determined was the appropriate sentence in the circumstances of the case, which the appeal sheriffs described as “misconceived”.

“The notification requirements which follow upon a particular disposal are, of course, determined by statute; however, the sentence selected by the sheriff determines what the notification period is,” Sheriff Principal Turnbull said.

Disproportionate outcome

The appellant argued that the automatic imposition of five years notification on an offender who is fined for an offence at what the sheriff described as “the lower end” of section 3 of the 2009 represented a “disproportionate interference” with his right to a private and family life under Article 8 of the European Convention on Human Rights.

Allowing the appeal, the appeal sheriffs ruled that the sheriff erred in failing to take into account the effect of the notification requirements when determining sentence.

Delivering the opinion of the court Sheriff Principal Turnbull said: “In cases where the legislature has imposed automatic registration requirements which vary according to the sentence passed, the period and consequences of the requirements are relevant considerations in the sentencing exercise and should be taken into account.

“Parties did not challenge the sheriff’s description of this offence as falling at the lower end of the scale and as not being sufficiently serious to justify a community payback order. In such circumstances, we consider that the requirement to register as a sex offender for a five year period, which automatically follows from the imposition of a fine, is unnecessary for the purposes of public protection and has an disproportionately penal effect on the appellant.”

The court therefore quashed the sentence and imposed a community payback order with an offender supervision requirement for a period of six months.