Sheriff’s refusal to impose ‘risk of sexual harm order’ on gymnastics coach was ‘flawed’

The sheriff held that it would not be “just” to impose the interim RSHO because the respondent had been suspended from his coaching post and therefore the risk of sexual harm had been reduced, but a sheriff principal ruled that the sheriff’s decision was “flawed” as he placed “undue focus” upon the respondent’s role as a gymnastics coach.

Sheriff Principal Craig Scott QC heard that in October 2015, the then Chief Constable for Scotland Stephen House brought a summary application craving the court to make an RSHO and an interim order under section 2(6) of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 against the respondent, “R McK”.

For the motion to be granted, the sheriff required to be satisfied (a) that the application had been intimated to the respondent; (b) that prima facie the respondent had on at least two occasions done a proscribed act within subsection (5) of section 2 of the Act; and (c) that it was just to make the order.

In the event, and having considered the competing submissions, the sheriff refused to make an interim RSHO.

In his note, the sheriff explained that while he was satisfied regarding intimation having been made and the prima facie commission of proscribed acts on at least two occasions, he was not satisfied that it was just to make the interim order sought.

He relied to a material extent upon the fact that the perceived risk of sexual harm related to the respondent’s position as a professional gymnastics coach.

The applicant averred that the respondent’s alleged sexual activity involving children had arisen “from the opportunities presented to him as a gymnastics coach of children”.

The application stated that the respondent had “exploited his position as a gymnastics coach to his advantage to coerce and influence female children to receive and send explicit sexual messages and to engage in sexual activity with them”.

The fact that the respondent had been suspended from his gymnastics coaching post, pending the outcome of a criminal investigation, led the sheriff to conclude that there was a “material diminution in the prima facie risk of sexual harm presented by the respondent in the interim period prior to final determination of this application.”

Against that background, the solicitor for the applicant submitted that the sheriff had “erred” in not being satisfied that it was “just” to make the order sought.

The main thrust of the applicant’s argument was to the effect that the sheriff had “failed to attribute sufficient weight to the general risk posed by the respondent towards female children” notwithstanding the fact that he was currently suspended from his position as a gymnastics coach.

She also pointed to certain averments made by the applicant in article 2 of condescendence, which stated that in June 2013 the respondent had been convicted at Glasgow Sheriff Court of an offence contrary to section 127 of the Communications Act 2003, which had arisen from his contact with a 15-year-old girl.

The solicitor for the respondent founded largely upon the proposition that, in refusing the interim order, the sheriff required to “balance all the relevant factors” and had been doing no more than “exercising his discretion in a proper fashion”.

It was also submitted that an interim RSHO, if granted, would “significantly interfere” with the respondent’s personal freedoms and lifestyle taken as a whole.

However, the Sheriff Principal of Glasgow and Strathkelvin said he accepted the submission advanced on behalf of the applicant that the sheriff appeared to have “overlooked the significance” of the respondent’s “criminal conduct” towards a 15-year-old female.

“The criminal conduct on the part of the respondent, all as set out in article 2 is, indeed, exactly the sort of conduct which would give rise to the inference that the respondent posed a risk of sexual harm towards children generally or to any child and that, consequently, such children may require protection from the respondent’s behaviour,” he added.

In a written judgment, Sheriff Principal Scott said: “In my opinion, in determining the issue of whether it was just to make an interim RSHO, the sheriff placed undue focus upon the respondent’s role as a gymnastics coach.

“The fact that the respondent may have exploited that role in pursuit of some form of sexual gratification with one particular teenage girl does not constrain or confine the nature of the risk posed by the respondent.

“In determining that the suspension of the respondent from his coaching position had materially diminished the prima facie risk of sexual harm presented by him, it seems to me that the sheriff confused the question of risk with that of opportunity.

“In other words, whilst it might readily be accepted that one particular avenue of opportunity had been closed, it cannot be said, particularly when one has regard to the incontrovertible averments in article 2, that the wider risk of sexual harm presented by the respondent had truly been diminished to any material extent.

“Therefore, I consider that the basis for the sheriff’s conclusion that it was not just to make an interim RSHO was flawed.”