JUDGEMENT OF SHERIFF FOULIS

IN THE CASE OF

B143/06 THE CHIEF CONSTABLE, TAYSIDE POLICE v BASTERFIELD

Perth, 3^rd September 2007,

The Sheriff, having resumed consideration of the cause, finds the following facts admitted or proved :-

1. The Pursuer is Chief Constable of Tayside Police, the police force of the administrative region of Tayside comprising the present local government areas of Angus, Dundee, and Perth and Kinross. The force has its administrative headquarters at West Bell Street, Dundee.

2. Part of the area of the Pursuer's police force lies within the Sheriffdom of Tayside Central and Fife at Perth. The Defender resides at Flat A, 89, Scott Street, Perth. This is within the Sheriffdom. Accordingly in terms of section 112(1) of the Sexual Offences Act 2003, this court has jurisdiction. No agreement exists between the parties prorogating jurisdiction in respect of the present cause to another court and no other proceedings are pending between the parties in respect of the subject matter of the present application.

3. The Defender was born on 8^th December 1971 in Perth, Western Australia. He moved to the United Kingdom on 8^th January 2003.

4. Between 1989 and 2000 the Defender was convicted on eight occasions of various offences in Australia. These offences varied from crimes of violence to driving offences. As a result of said convictions, the Defender received penalties ranging from nine months imprisonment and numerous fines to probation. None of these offences contained a sexual element.

5. In particular, on 15^th December 1998 the Defender used a hammer to damage a motor vehicle belonging to Channel Nine, a television company in Australia. He deliberately swerved the vehicle he was driving into the path of the other motor vehicle, and chased male employees of said company with a knife with a twenty centimetre blade. The Defender subsequently told police officers that he had a grievance with the media and that he was hearing voices through the media. He wished to speak to someone with that company. As a result of being convicted of charges arising from said incident, the Defender was prohibited from contacting employees of that television company or entering their premises for a period.

6. On 18^th November 2004 around 11.30am the Defender followed Victoria Keiro, 3, Old Mill Courtyard, Bridge of Earn from Main Street, Bridge of Earn to her home. He followed her through the entry door to the property in which her home was situated and pushed open the front door of her home. As a result of M/s Keiro's dog barking, the Defender was startled and she was able to push him from her house. M/s Keiro was hysterical as a result of the Defender's behaviour. As a result of this incident she no longer likes to go out alone nor answers her door unless she knows who is there. M/s Keiro was in her mid twenties at the time of this incident.

7. As a result of behaving in the foregoing manner, the Defender appeared on summary complaint in Perth Sheriff Court. On 11^th March 2005, after sundry procedure in respect of this complaint, the Defender was convicted of breach of the peace. As a result of this conviction, the Defender was placed on the sex offenders register in terms of section 92(2) of the Sexual Offences Act 2003, the court having determined that there was a significant sexual aspect to the Defender's behaviour in committing said offence.

8. The said offence constitutes an offence within paragraph 60 of Schedule 3 of the Sexual Offences Act 2003.

9. As a result of said conviction, on 20^th December 2006 the Defender was made the subject of a probation order lasting three years. This order was made in terms of section 228 of the Criminal Procedure (Scotland) Act 1995 and it contained a number of additional conditions namely:-

(a) The Defender should attend any sexual offending programme that his supervising officer deems appropriate.

(b) The Defender participates in any sexual offending programme to a degree acceptable to his supervising officer.

(c) The Defender is not alone with or in the company of a lone female without her expressed consent.

(d) The Defender does not take up employment, voluntary work, or any recreational activity without notifying his supervising officer.

(e) The Defender should attend for any psychiatric or psychological assessment that his supervising officer deems necessary or appropriate.

The order was and is subject to regular review in terms of section 229A of the Criminal Procedure (Scotland) Act 1995.

10. As at April 2007, the Defender has complied with the terms of said probation order.

11. Prior to 18^th November 2004 the Defender attended M/s Keiro's place of employment to enquire about a mobile phone. He was abusive when he left the premises.

12. Following the Defender being placed on the sex offenders register with effect from 11^th March 2005, sex offenders risk assessment officers from the Pursuer's force kept in regular contact with the Defender. The officers carried out a risk assessment on the Defender in December 2005. They determined that the Defender constituted a high risk of reconviction.

13. Said risk assessment has been reviewed by officers on an ongoing basis. The Defender has always been assessed as constituting at least a high risk of reoffending. On 19^th July 2006, officers carried out a further Sex Offender Risk assessment in accordance with the Risk Matrix 2000. This assessed the Defender as constituting a very high risk. In terms of the action plan in said assessment, the Defender was to be visited monthly and re assessed in three months. His activities regarding employment and involvement with Letham and St Mark's Church were to be monitored. In November 2006 a further assessment was again carried out in accordance with the Risk Matrix 2000. This assessed the Defender as still constituting a very high risk of reoffending.

14. On 19^th and 21^st July 2005 the Defender was in the North Inch, Perth around midnight. He was on his own and carried a rucksack containing clothing and a towel.

15. In early September 2005 Maria Dominguez, a Spanish national, came to Perth where she undertook a course in English at Perth College. She was aged twenty five years of age. She obtained part time employment at Bells Sports Centre, Perth where she worked as a catering assistant from that time. Bells Sports Centre is adjacent to the North Inch.

16. In the early evening of 18^th February 2006 M/s Dominguez left Bells Sports Centre on her own. The Defender joined her and walked with her. In the course of conversation he invited her to come to his house and asked if he could accompany her. M/s Dominguez declined his invitation. The Defender made efforts to take hold of her hand and repeatedly placed his arm around her shoulders. He continually ignored her pleas to leave her alone and to stop what he was doing. The Defender attempted to push M/s Dominguez towards a grass area on the North Inch which was in darkness.

17. M/s Dominguez started to run from the Defender in Atholl Street, Perth. The Defender chased after her as she tried to get away from him. He stopped her and did not let her past. He attempted to show her videos on his mobile telephone and asked her for her telephone number. M/s Dominguez again started to run and the Defender ran after her. In Charlotte Place, the Defender stopped her again and asked her to come home with him. She asked him to leave her.

18. M/s Dominguez then walked along Skinnergate, and into High Street, Perth. The Defender still followed her. By this stage M/s Dominguez was very upset. She attempted to gain entry to a friend's house for help. At this point the Defender left her.

19. A short time later, M/s Dominguez, unable to summon her friend, walked along High Street, Watergate, and Edinburgh Road to her home in South Inch Park, Perth. The Defender was in the vicinity of the Ferguson Gallery, adjacent to the South Inch, but did not see her.

20. As a result of the Defender's behaviour towards M/s Dominguez on 18^th February 2006, she was terrified of him. M/s Dominguez abandoned her course and left Scotland.

21. At the time of acting in the foregoing manner, the Defender was on bail, the order having been imposed on 19^th November 2004 in Perth Sheriff Court in respect of the incident involving M/s Keiro. Sentence had further been deferred upon him for the Defender to be of good behaviour until 31^st May 2006 in relation to the incident on 18^th November 2004.

22. As a result of behaving in the foregoing manner towards M/s Dominguez, the Defender appeared on summary complaint in Perth Sheriff Court and on 4^th July 2006 the Defender was convicted of breach of the peace. As a result of this conviction the Defender was placed on the sex offenders register in terms of section 92(2) of the Sexual Offences Act 2003, the court again having determined that there was a significant sexual aspect to the Defender's behaviour in committing said offence. On 26^th July 2006 the Defender was sentenced to four months imprisonment in respect of this offence. The Defender appealed said sentence without success.

23. As a result of the said convictions and the resultant penalties imposed, the Defender will remain subject to registration in terms of section 92(2) of the Sexual Offences Act 2003 until 2013.

24. From the summer of 2005 until May 2006 the Defender was a member of Perthshire Rugby Club. His nickname within the club was 'Crazy Rob.' He often attended Bells Sports Centre, Perth after rugby matches. On a few occasions the Defender left the premises at the same time as lone females who had been present in the bar. After concerns were raised as to the Defender's said behaviour, if the Defender left at the same time as a lone female, a club member would follow him.

25. The Defender regularly had hard core pornographic publications in his possession when attending rugby training or travelling to rugby matches with the club. At times he would discuss female chat lines when in the company of members of the club.

26. The content of chat amongst members of a rugby club is often boisterous in nature. It on occasions has a sexual content.

27. On one occasion in the late summer/early autumn of 2005, the Defender forgot his rugby kit when he appeared at training. He accordingly trained in his underwear. Training took place on the North Inch which is a public park.

28. In April 2006, the Defender approached a number of single females leaving Bells Sports Centre and inquired whether they were going to Sportsters, a public house in Perth. The females said that they were not and the Defender left.

29. Towards the end of April 2006, the Defender attended the annual Perthshire Rugby Club dinner at the Queen's Hotel, Perth. After the dinner, many of the club members, including the Defender, attended Sportsters. The Defender left Sportsters about 2am and joined a taxi queue. He was standing next to a female in the queue. There was no conversation between them. On this female entering the rear seat of a taxi, the Defender quickly entered the taxi behind her, uninvited. As a result of the Defender's actions, the female moved to the far corner of the rear of the taxi and screamed. The Defender was close to her, neither saying nor doing anything. The Defender was removed from the taxi by another rugby club member, having failed to initially move when asked to do so by his club colleague.

30. For a period the Defender became a member of the congregation of Letham and St Mark's Church in Perth in order to meet females.

31. The Defender attended Gaelic classes held in Perth Grammar School for a period.

32. On 12^th June 2006 sex offender risk assessment officers visited the Defender's home unannounced. The officers recovered a notebook which contained notes from the Gaelic class attended by the Defender. These notes were contained in the first half of the notebook. Thereafter, the contents of the notebook included a few sexual images and a few comments, the meaning of which was unclear. Some of these comments could be construed in a sexual manner. The remainder of the contents of the second half of the notebook was unintelligible. This notebook was passed by the officers to the senior house officer at Murray Royal Hospital, Perth. The Defender was detained there in terms of the Mental Health (Care and Treatment)(Scotland) Act 2003 in June 2006. The notebook was not passed on to Dr Basel Switzer.

33. In 21^st June 2006 the Defender was assessed by Dr Switzer, a specialist Registrar in Psychiatry at Sunnyside Hospital, by Montrose following his said detention.

34. The Defender suffers from a schizotypo personality disorder. This disorder tends to be life long. A person suffering from such a disorder often acts in an odd and eccentric manner. The Defender tends not to abide by normal social boundaries and misinterprets social cues. He tends to be unable to understand the usual social norms of engagement with females. He has difficulty understanding why he was convicted of the criminal charges as a result of the incidents involving M/s Kiero and M/s Dominguez. The Defender generally minimises the character of his behaviour. He lacks empathy with his victims. He displays strong psychopathic trends. As a result the Defender constitutes a danger to others, particularly females.

35. This disorder does not respond to any anti psychotic medication. Treatment programmes with cognitive or psychotherapeutic input have minimal success.

36. The Defender's intention in acting in the way he has is to establish a relationship with a female.

37. As a result of the disorder from which the Defender suffers, he is very likely to commit a further sexual offence or an offence with a significant sexual element. In that event, serious sexual harm is likely to be caused to a member of the public, particularly a female.

38. As a result of his disorder and the resultant tendency for misinterpretation on the part of the Defender, the most effective prohibitions in any Sexual Offences Prevention Order are those which are clear and unambiguous and thus easily understood by the Defender. Such an order would materially reduce the likelihood of the Defender offending in a manner similar to that displayed in the incidents involving M/s Keiro and M/s Dominguez. As a result such an order would materially reduce the risk of serious sexual harm to a member of the public, particularly a female member of the public.

39. On 7^th July 2006 a Crisis Management Meeting took place. This meeting was chaired by Detective Superintendent Cameron of Tayside Police. Representatives from Tayside Police, from Perth and Kinross Housing, Education, and Criminal Justice Services departments, and Doctor Basil Switzer were in attendance. Those in attendance at said meeting were under the mistaken impression that the offence committed by the Defender in December 1998 had a sexual element.

40. At the conclusion of this meeting all in attendance were agreed that the Defender constituted an imminent risk of committing a sexual offence against a lone female causing serious physical impact as well as associated mental trauma. It was further agreed at said meeting that an application be made in terms of section 105 of the Sexual Offences Act 2003 for a Sexual Offences Prevention Order. The terms of the order to be sought in such an application were to prohibit the Defender for a period of thirty years from

(a) being alone or remaining in the company of any lone female;

(b) approaching, accosting, following, or communicating in person with any lone female;

(c) causing or permitting any lone female to enter or remain in any place at which the Defender may reside or any other dwelling house occupied by him whether temporarily or permanently;

(d) permitting any lone female from occupying any vehicle owned or used by the Defender or a vehicle in which the Defender is a passenger other than a public services vehicle;

(e) engaging in any form of employment, self employment, or voluntary activities that would permit the Defender to have unsupervised access or control of any lone female.

41. As a result of his convictions, the Defender's details are recorded on the Violent and Sex Offenders' Register (VISOR). On the expiry of the period during which these details are on VISOR, 2013 in the case of the Defender, police officers will continue to monitor the Defender in the event that he is considered by them to constitute at least a high risk to the public.

42. In the event of the Defender breaching either the probation order or any sexual offences prevention order, the steps taken in respect of any breach of the latter order are more immediate.

FINDS IN FACT AND LAW

1. The Defender has been convicted of an offence in terms section 105(1)(a)(i) of the Sexual Offences Act 2003

2. Since the date of said conviction, the Defender has behaved in such a way as to give the Pursuer reasonable cause to believe that an order in terms of section 105(1) of the Sexual Offences Act 2003 is necessary.

3. The Defender is likely to commit a further offence set out in Schedule 3 of the Sexual Offences Act 2003.

4. As a result of commission of such a further offence by the Defender, a member of the public is likely to suffer serious sexual harm.

FINDS IN LAW

1 The granting of an order in terms of section 105(1) of the Sexual Offences Act 2003 is necessary to protect members of the public from suffering serious sexual harm as a result of the actions of the Defender.

2 The granting of an order in terms of section 105(1) of the Sexual Offences Act 2003 does not contravene the Defender's rights in terms of the European Convention of Human Rights.

3 The granting of an order in terms of section 105(1) of the Sexual Offences Act 2003 is lawful.

THEREFORE

Sustains the first plea in law for the Pursuer and the first plea in law for the Defender to the extent of hereinafter referred to, and repels the parties' remaining pleas in law; makes for a period of five years from this date a Sexual Offences Prevention Order in terms of section 105(1) of the Sexual Offences Act 2003 prohibiting the Defender from accosting any lone female; thereafter continues the cause to 3^rd October 2007 @ 10 am in order to determine liability as to the expenses of the cause and to enable parties to make submissions regarding an article in the Sunday Herald dated 9^th April 2007.

NOTE

In this hearing for an order in terms of section 105(1) of the Sexual Offences Act 2003, the Pursuer was represented by Mr Smith, advocate, the Defender by Mr MacDonald, advocate. Evidence was led on 26^th, 27^th, and 28^th February 2007. Although both parties produced very helpful and extensive written submissions, I heard counsel for both parties expand these submissions on 3^rd April 2007. These original submissions are appended to this note. I have detailed the further comments made by counsel at the end of their respective submissions.

The Pursuer led evidence from Detective Constables Ross Fitzgerald and Paul McGranaghan, Kevin Brown, Victoria Keiro, Andrew Flavell, Doctor Basel Switzer, and Detective Sergeant Graham Young. The Defender neither gave evidence not called anyone as a witness. The parties further agreed certain matters in two joint minutes of admissions.

Dealing firstly with evidential matters, there was generally no great dispute as to the evidence. There were disputes as to the inferences which could be drawn from the evidence led and I propose to deal with these matters under the headings in which they are relevant. I shall likewise comment on any evidence insofar as it is relevant at those points.

Turning to the relevant legislation, there was no dispute between counsel that the Defender had been convicted of an offence which fell within the ambit of section 105(1)(a)(i) of the Sexual Offences Act 2003, namely the conviction involving M/s Kiero dated 11^th March 2005. There was further no dispute that after this conviction the Pursuer, through his officers, carried out an assessment required in terms of section 105(1)(b).

The first issue is whether there is evidence, which if accepted, could satisfy me that the terms of section 105(3)(a) of the Act are met. In terms of that subsection 'the person's behaviour since the conviction ..... makes it necessary to make such an order, for the purposes of protecting the public or any particular members of the public from serious sexual harm from the person.' In terms of section 106(3) "Protecting the public or any particular members of the public from serious sexual harm from the defendant" means protecting the public in the United Kingdom or any particular members of that public from serious physical or psychological harm, caused by the defendant committing one or more offences listed in Schedule 3.

In short, before I can even consider whether an order can be made, the behaviour of the Defender since 11^th March 2005 requires to be of such a character that an order is needed to protect the public or members of the public from serious physical or psychological harm caused by the commission of a sexual offence. As can be seen from the submission made on behalf of the Defender, it was argued that there required to be evidence that serious sexual harm had in fact occurred as a result of the previous behaviour of the Defender. Harm meant a diagnosable condition. Fear and alarm were insufficient.

In submitting that there was sufficient evidence counsel for the Pursuer referred me to R v Rampley 2006 EWCA Crim 2203. In that decision Mr Justice Gray compared the terms of section 224(3) of the Criminal Justice Act 2003 which referred to 'serious harm' meaning 'death or serious personal injury whether physical or psychological' with the provisions of the Sexual Offences Act 2003 referred to previously. It was noted that there was a qualitative difference between the concepts of 'injury' and 'harm' and there was a distinction between the two, albeit fine. In that case the Appellant had been convicted of touching the bottom of a fifteen year old girl on the platform of a railway station. In passing, I would further observe that in R v Michael H 2005 ECWA Crim 3037, an order was made in relation to an accused who had made an indecent photographs or psuedo photographs. No submission was made to matters raised by counsel for the Defender in these decisions. There does not appear to be any suggestion that the victims in fact suffered injury or harm as a result of the offences.

In my opinion reference in section 106(3) to serious harm as opposed to injury does denote a difference. There is a distinction, albeit fine, between harm and injury. It seems to me that harm is wider. I do not consider that harm is restricted to a diagnosable condition. Further the aim of the legislation is protection. It seems to me that that aim would be seriously compromised if it was necessary to establish that a past victim had suffered a diagnosable condition. There might be numerous reasons why such evidence relating to a past victim was unavailable. It might be that the victim had not sought medical help. That would not necessarily mean that serious harm had not been caused. The victim might prefer to deal with the matter on her own without the need of counselling or treatment. The victim might be no longer available to give evidence for a number of reasons. As a result no medical information relating to that victim might be available. I cannot accept that there is no room in the statutory provision for the use of foresight insofar as serious sexual harm is concerned. To require the evidence suggested by Mr MacDonald seems to me to almost be equivalent to the 'every dog is allowed one bite' principle! This seems to me inconsistent with the provision's aim of protection. Accordingly, I reject the submission of Mr MacDonald.

In any event, in terms of sections 105(3)(a) and 106(3) the court's attention is directed to the future. The order is to protect members of the public from serious sexual harm from a person such as the Defender committing an offence of the character of those set out in schedule 3 of the Sexual Offences Act 2003. In my opinion the court can look at the nature of the past events and their effect on the victims and conclude that serious sexual harm would be suffered by a victim in the event of the commission of such an offence by a person such as the Defender. These previous actings are clearly relevant but not, in my view, determinative. In the present case M/s Keiro talked of being hysterical as a result of the incident. She said she did not like to go out on her own and did not answer the door unless she knew who was expected. She is in her mid twenties. It seems to me that one would not normally expect such a reaction from a person of her age. Her evidence was not challenged. Likewise, M/s Dominguez indicated in her statement that she was terrified of the Defender and as a result of his actings she abandoned her course and left Scotland. Again this account was not challenged. It seems to me that historically these females suffered serious psychological harm as a result of the Defender's actings. It further seems to me reasonable to infer that if the Defender committed a further offence as set out in schedule 3 a member of the public could be anticipated to suffer serious sexual harm. One only requires to have regard to the events at the taxi rank after the rugby club dinner and the girl's reaction to the Defender's actions. I am accordingly satisfied that there is sufficient evidence to establish the matter of serious sexual harm.

The next matter which I wish to deal with is counsel for the Defender's submission that the second conviction cannot be taken into account in determining the Defender's behaviour following the qualifying conviction, namely that of 11^th March 2005. I am afraid having regard to the terms of section 105 I can see no basis for this approach.

Still on the matter of behaviour, I wish to deal with the instances of behaviour by the Defender which I have been prepared to accept. This largely relates to the contents of the Scottish Intelligence Database, Pursuer's production number 5. Counsel for the Defender was critical of the entry relating to an incident on 2^nd April 2005 and the information relating to the Defender's behaviour at the rugby club.

Dealing with the incident on 2^nd April 2005, I agree with the observations of counsel. The incident was reported by the female to a local police constable. That officer then notified colleagues in order that it was logged on the database. There is however no information as to when the matter was reported and no categorisation of the report. The female who reported the matter was not named in the report. She was not a witness and accordingly I had no opportunity to assess her in that capacity. That, of course, does not prevent me from accepting the evidence. However, there was no evidence led from the officer to whom the report was made. He may have been able to give further details surrounding the reporting of the information and perhaps the demeanour of the female who made the report. I consider that this is important as the female concerned knew the Defender. Accordingly, his previous actions may have played a significant role in her reporting the matter. It is not reported that he said anything improper. I am not prepared to make any finding regarding this. I am not satisfied as to the circumstances of any incident simply from the entry in the Pursuer's production number 5.

I was prepared to accept the entries of 20^th and 22^nd July 2005. These had been reported by police officers. They would be familiar with the Defender. Their recording of matters is likely to be accurate. I would agree that these incidents are very much examples of bizarre as opposed to sexual behaviour. However, it is worthwhile to note the observations by Sheriff Cusine in Chief Constable, Grampian Police v Beech 2002 SLT (Sh Ct) 106 at 108A. Sheriff Cusine observes there that behaviour which is relevant for the purposes of considering whether an order is necessary is such as raises a reasonable apprehension that the Defender presents a threat to females. The conduct does not need to be sexual in nature. I agree with this observation.

Turning to the behaviour at the rugby club, I do accept the terms of the relevant entry. I do so for a number of reasons. Firstly, it is similar to aspects of the behaviour involved in the offence against M/s Dominguez. Further, the entry was consistent with the evidence of Mr Kevin Brown, who played rugby and spoke to the actions of the Defender in the clubhouse. There was nothing in his evidence or the manner in which he gave evidence which caused me to doubt its content. In addition, there was sufficient concern for the actions of the Defender that informal arrangements were in fact set up to chaperone single females leaving the clubhouse if the Defender was present. In short, the entry in the database was consistent with the other evidence concerning the Defender's behaviour in the clubhouse.

In conclusion, having regard to the evidence which I have accepted, I am satisfied that the Defender has, since the date of the qualifying conviction, behaved in such a way that one could anticipate his acting in such a way that his behaviour would constitute an offence specified in Schedule 3 of the Sexual Offences Act. As I have already noted, in that event one could anticipate that the public or particular members of the public could sustain the relevant harm.

The next issue to determine is the crucial one of necessity. I shall deal with this in two stages. I shall firstly consider whether any Sexual Offences Prevention Order is necessary, before moving on to consider the terms of the order sought by the Pursuer from a number of view points.

The order sought in terms of section 105 of the Sexual Offences Act 2003 is a prohibitory one. It firstly seeks to prevent the Defender from doing certain things he would normally be entirely within his rights to do, namely to be alone and remain in the company of a lone female, communicate with a lone female, allow a lone female to enter and remain in his place of residence, and likewise a vehicle he is driving or in which he is a passenger. If the female concerned did not consent to the Defender's presence or actions in those instances, then I can certainly envisage that an offence might be committed on a number of occasions. The fact remains that this prohibition prevents the Defender from acting in an otherwise unobjectionable manner. In addition, the order seeks to prevent the Defender approaching, communicating with, accosting, or following a lone female. This arguably seeks to prevent the Defender from acting in that way with the general intention of prohibiting the Defender from, at very least, being a nuisance to a female. I can foresee difficulties with the use of 'approach' and 'follow' but that is for later. However, this prohibition is arguably aimed at behaviour on the part of the Defender in which he should not engage.

In the context of personal actions there have been a number of instances of prior legislation in which orders can be sought to prohibit a person's actions where such an order is considered necessary. I shall turn to these as one of the tests for the granting of the order now sought by the Pursuer is that the order is necessary.

In terms of section 4(2) of the Matrimonial Homes (Family Protection)(Scotland) Act 1981 an exclusion order could be granted if necessary for the protection of the applicant from any conduct, actual or threatened, of the other spouse. There are qualifications to this in section 4(3) of that act. In terms of section 1(2)(c) of the Protection from Abuse (Scotland) Act 2001 a power of arrest is attached to an interdict if necessary to protect the applicant from risk of abuse. In terms of section 4(2)(c) of the Antisocial Behaviour etc (Scotland) Act 2004 an antisocial behaviour order may only be granted if the order is necessary to protect persons from further such behaviour. In terms of section 7(2)(c) an interim order can only be made if the sheriff is satisfied that such an order is necessary for that purpose. Further in terms of section 30 of that Act a sheriff may make a closure order in respect of premises inter alia if such an order is necessary to prevent significant and persistent disorder or nuisance. In terms of the first two pieces of legislation, the court is required to make the order if the conditions including that of necessity are satisfied. In terms of the antisocial behaviour legislation as with section 105 of the present legislation, even if the tests are satisfied, the court still has discretion as to whether the order should be made.

The issue of necessity has been looked at in relation to the legislation to which I have referred in a number of decisions. In the interpretation of sections 4(2) of the Matrimonial Homes (Family Protection)(Scotland) Act 1981 Lord Justice Clerk Ross in McCafferty v McCafferty 1986 SLT 650 at 652L noted that the test of necessity is a high or rigid one. The availability and effectiveness of alternative remedies such interdict had to be considered but was not conclusive. In Ward v Ward 1983 SLT 472 the availability of interdict was not so significant in face of a party who had embarked on a drink related course of conduct over a long period. In the circumstances in that case, it was unlikely that any other remedy apart from an exclusion order would provide the necessary protection. A similar view was taken in relation to closure orders in terms of section 30 of the Antisocial Behaviour etc (Scotland) 2004 Act by Sheriff Holligan in Application by Superintendent of Fife Constabulary 2005 SLT(Sh Ct) 2. He considered that necessity was a high test to satisfy and referred to the decisions under the 1981 Act. Turning to the anti social behaviour orders in terms of section 4 of that Act in Glasgow Housing Association v Sharkey 2005 SLT (Sh Ct) 59 Sheriff Principal Bowen considered in relation to the preceding legislation that to describe the test of necessity as being a high one in relation to interim anti social behaviour orders was pitching it too high. What was necessary was a matter of fact to be decided in each case.

It may be that in practice these apparent differences in interpretation are not significant. However, I consider that the interpretation of necessity in terms of section 4(2) of the 1981 and section 30 closure orders in terms of the 2004 Act is more persuasive in interpreting the legislation in this case. Applications for antisocial behaviour orders normally seek to prohibit behaviour which constitutes a nuisance and thus should not normally be undertaken in living within boundaries society considers acceptable. In contrast, an order sought in terms of section 4(2) of the 1981, if granted, prevents a person from exercising a right vested in him or her either by heritable title, lease, or section 1 of that legislation. Likewise a closure order prevents persons from occupying premises which but for the order they would be entitled to do. Similarly, as I have already noted, the present application largely seeks to prevent the Defender from doing what he would normally be perfectly entitled to do. Logically, it further seems to me that the intended purpose of an order in terms of section 105(1) of the 2003 Act will normally be of that nature. If it was only to prohibit a person from breaching the existing criminal law, then it is questionable what real purpose such orders would serve as any breach of the criminal law would carry a penalty already. The incentive for a person to behave exists already.

Counsel for both parties further referred me to a considerable number of English decisions, some of which give indications as to factors to be considered in deciding whether the test of necessity is met. By reference to the decision in R v Halloren 2004 EWCA Crim 233 and R v D 2006 1WLR 1088, counsel for the parties accepted that necessity did not equate with desirability, appropriateness, or usefulness. The court should give consideration as to what other measures are in place in respect of offender - R v Ali Badiel 2005 EWCA Crim 970. Further, regard should be had to the frequency of the behaviour and when it occurred - R v G 2006 EWCA Crim 1994.

Looking at the facts relevant to the issue of necessity, the Defender in a little under sixteen months committed two similar offences involving following lone females who were in their twenties. The Defender was made subject of the requirement to register in terms of the Sexual Offences Act 2003 in respect of both offences. Accordingly the sheriff considered that there was a significant sexual aspect to the Defender's behaviour in respect of these offences. This assessment of his behaviour was not challenged by the Defender. The second offence further was committed whilst the Defender was subject to bail and also ordered to be of good behaviour. He accordingly committed the second offence whilst being in a position of trust. Not only did he breach his position of trust by committing the second offence but also the second offence was of a similar character to the first. Two months later, in April 2006 he approached single females in the manner set out in findings 28 and 29. Whilst the ages of the females concerned were not mentioned in evidence, I suspect that they were of a similar age to M/s Keiro and M/s Dominguez. Mr Brown, who was aged twenty four, at times described girls in the club house being uncomfortable when the Defender spoke to them inquiring where they were going and could they meet up. He talked about the girls' partners. Bearing in mind the average age of rugby players, it seems to me safe to assume that the females concerned were in their twenties.

In the taxi incident, the female was described as shocked. She screamed when the Defender was in the taxi and was cowering by the door. Although the age of the female was not specified, she was constantly described by Mr Flavell as 'the girl.' He was forty years of age and I infer from his description of her that she was younger than he was. I have to say that Mr Flavell was a very impressive witness. He was very straightforward and I had no hesitation in accepting his account. Again I consider I safe to assume that the female concerned was likely to be in her twenties. At the time, the Defender was again in a position of trust for the reasons already noted.

In addition to these matters, there is the Defender's other behaviour. This varies from worrying, against the background of the foregoing incidents, to somewhat bizarre. In the former category are the examples of the Defender's behaviour with females at the rugby club and the reasons for his participating in various activities. The Defender's late night forays on the North Inch and the training incident fall into the latter category. The writings in the notebook recovered by the police from the Defender's premises and the Defender's use of pornography are perhaps on their own of no particular significance. However, when considered in combination with the other matters, it seems to me that there are grounds for concern arising from the Defender's behaviour.

This concern is heightened when consideration is given to the evidence of Doctor Switzer. The Defender is described as unable to understand the usual social norms of engagement with females and has difficulty in understanding why he was prosecuted for the incidents involving M/s Keiro and M/s Dominguez. He is considered a danger by the psychiatrist and his condition is not able to be treated. In those circumstances, an analogy can be drawn with the observations in Ward v Ward in that, as alcohol made the Defender in that case unpredictable, so the Defender's medical condition in the present case has the same potential result.

In light of all these circumstances I consider that in principle a Sexual Offences Prevention Order is necessary. In coming to this conclusion, I, however, place little weight on the decision reached by those attending the meeting on 7^th July 2006 for a number of reasons. Firstly, the information on which they based their decision was in some aspects inaccurate. In particular, the meeting was under the impression that the incident in Australia in 1998 had a sexual element. This is incorrect.

Further, it seems to me that the goal of the meeting was very much the protection of the public without any real consideration of the Defender's rights. I formed the impression that Detective Sergeant Young largely conceded this to be the case. Further, a perusal of the terms of the order which they agreed should be applied for as opposed to the one now being sought by the Pursuer gives as good an indication as is needed to confirm that this was the case. There was no allowance for consent on the part of any lone female in the former. That proposed prohibition was so wide that the Defender would have no opportunity to establish any relationship with any female. The duration of the proposed prohibition was thirty years, until the Defender was in his mid sixties. This decision was reached against a background of two offences prosecuted under summary procedure by the appropriate authorities. It was said to be reached by Detective Sergeant Young with the meeting considering the terms of the order sought to be as narrow as was necessary to deal with the perceived risk. If this was indeed the case, then it seems to me that the meeting was at least in part influenced by the reaction sexual offences of any character cause generally these days, such reaction at times displaying limited calm consideration of all the relevant issues and circumstances.

I also place little weight on the risk assessments carried out by Detective Constables and McGranaghan. With respect to the officers, whilst their completion of a risk assessment is a necessary precursor to the present application, neither officer could be described as experienced in the field. In addition, neither had any psychiatric or psychological qualifications.

In considering whether in principle a Sexual Offences Prevention Order is necessary, I have not taken account of the Defender being the subject of a probation order. This seems to me to be relevant when considering whether the order actually sought in this action by the Pursuer is appropriate and it is to this issue that I now turn. There are a number of issues which arise under this heading.

The first is whether the order as sought is sufficiently intelligible and precise. The order seeks to prohibit the Defender for a period of ten years from :-

(i) Being alone with or remaining in the company of any lone female, except with her expressed consent;

(ii) Approaching, accosting, following, or communicating in person with any lone female, except with her expressed consent;

(iii) Causing or permitting any lone female, except with her expressed consent, to enter or remain in any place at which the Defender may reside or any other dwelling house occupied by him, whether temporarily or permanently;

(iv) Permitting any lone female, except with her expressed consent, from occupying any vehicle owned or used by the Defender or a vehicle in which the Defender is a passenger other than a public services vehicle.

These prohibitions do not extend to an initial approach by the Defender to any lone female and communication between the Defender and any lone female for the sole purpose of the Defender seeking her consent to be within her company. 'Initial' means first. Where, upon this initial approach having been made by the Defender, any lone female does not give her expressed consent for the Defender to remain within her company, the general prohibitions apply.

It is a well established principle regarding court orders which prohibit a party acting in a certain manner that they are firstly clear. In referring to the common law remedy of interdict H Burn-Murdoch in Interdict in the Law of Scotland at paragraph 108 spoke of it being 'a fundamental principle that an order of the Court forbidding or commanding, under penal consequences, must not be vague so as to leave a respondent in doubt as to what he may do or must do.' Reference was made to the dicta of Lord Adam in Cairns v Lee 1892 20R 16 at 20 in which his Lordship noted that the prayer of the petition for interdict 'must have language that is precise and definite, just as the interlocutor following upon it must be precise and definite, so that a respondent may know at once when he is doing anything that can be construed to be a breach of interdict.' It seems to me that the principle to which I have referred is of greater significance when regard is had to the potential penalty for breach of the order now sought. An allegation of breach of interdict can only be enforced by a separate civil process. On the other hand, the maximum penalty for breaching a Sexual Offence Prevention Order is five years imprisonment following a criminal prosecution. Further, whilst the former order will normally prohibit the person subject to the interdict from acting in a certain way towards a named person or persons, the latter order will generally prohibit actings against at least a section of the public. Thus the prohibition in the latter is normally wider.

This principle to which I have referred has been adopted by the judiciary in England in relation to Sexual Offences Prevention Orders. In B v Avon and Somerset Constabulary 2001 1WLR 340 Lord Bingham of Cornhill observed 'If anyone is the subject of a prohibitory court order for breach of which he is liable to severe punishment, that person is entitled to know, clearly and unambiguously, what conduct he must avoid to comply with the order. Such clarity is essential for him..... The order should be expressed in simple terms, easily understood by those who, like the appellant, are not very bright.'

A further another reason for precision is identified by Lord Bingham in B v Avon and Somerset Constabulary. The enforcing authority should be able to ascertain without difficulty that the order has been breached. In short, the exclusion of dubiety is essential both for the person subject to the order and the enforcer.

The first thing I would observe about the order sought is that, as a whole, it can hardly be described as able to be instantly remembered. On first reading, with the exception of the phrase 'except with her expressed consent' paragraph (i) prima facie might seem easily understood. It might be suggested that 'being alone with' a person must necessarily include 'remaining in' that person's company but that might be considered pedantic. However, on further consideration, has this part of the proposed order the requisite clarity? When is a female on her own? A male and female are sitting on their own at separate tables and are the only customers in a restaurant or bar. Are they alone in the restaurant or bar? This might be considered too esoteric but it is perhaps worthwhile to bear in mind the terms of one entry in the Scottish Intelligence Database, the fifth production in the Pursuer's Inventory, dealing with an alleged incident on 2^nd April 2005 and some of the alleged behaviour complained of. However, there are other scenarios to consider. For instance, what about a dentist's waiting room? The Defender walks in and the only other person in the room is a female? If the Defender sits down and does not ask the female for her consent, is he breaching this provision? What if the Defender is sitting in the waiting room on his own and a lone female walks in? Does he have to leave the room unless he obtains her consent? The Defender might be sitting on the same park bench as a lone female. They have not engaged in conversation and indeed do not know each other. There are other people in the park. Is the Defender alone with the lone female? If both remain sitting on the bench for a period, is the Defender remaining in the company of the lone female?

Turning to paragraph (ii) what is meant by 'approach.' If the Defender walks towards a lone female walking in the other direction in the street he is approaching her. If the Defender has no intention of engaging in conversation with her or being in her company, then, consent plays no part. The only approach permitted is for the sole purpose of ascertaining her consent in terms of the 'consent' qualification to the order sought. Accordingly, even if they pass without exchanging a word, he may have still approached her without her expressed consent and the qualification does not apply. If the Defender simply asked a female something as innocuous as whether a bus would take him to a particular destination, again consent would play no part. He has communicated with her. At first sight he is in breach of the order if the one sought was granted unless he firstly asks the female if she consents to his being in her company whilst he asks her his question.

Further, the proposed order sought refers to 'communicating in person.' In the evidence of Detective Sergeant Young, both the witness and counsel seemed to suggest that this phrase would only cover face to face communication. It would not cover communication by any other means. Does 'communicating in person' really exclude a telephone call between the Defender and a lone female? I personally have my doubts.

Again, does 'follow' require an intention on the part of a person so acting? One definition of 'follow' is simply 'to go or come after in the same direction.' This seems simply a factual matter. Is the person as a matter of fact going or coming after a person in the same direction? Again this may seem to be an exercise in legal nit picking but this seems to me justified in light of the dicta referred to and the consequences of the order being breached. I would also comment that I have difficulty with the concept of accosting a person consensually!

Moving to paragraph (iii), I would firstly question why the phrase 'whether temporarily or permanently' is required. It seems to me that either a property is occupied by a person at a particular time or is not. The last four words only add an element of doubt and are superfluous to requirements. However, does the phrase 'in any place at which the Defender may reside' assist? On one reading of this phrase, the Defender is prohibited from allowing a lone female to enter or remain in his place of residence whether or not he is actually in the property at the material time. Would this prohibit him from renting a property to a lone female, the property having been his place of residence?

Turning to paragraph (iv) the prohibition against permitting a lone female from occupying any vehicle owned by the Defender ex facie would prohibit a lone female driving or being a passenger in a car owned by the Defender even although he was not in the vehicle at the time. Further, by reference to paragraph (i) which prohibition has priority in the event of a situation in which the two are conflicting? If the Defender and a lone female are on a public services vehicle, then the Defender may not be in breach of paragraph (iv). He may however be alone with her and thus potentially breach the terms of paragraph (i). Quid juris? This again highlights the issue when is a female a lone female? If only the Defender and the female are on the public services vehicle, one presumes there is still a driver and perhaps a conductor. The consent qualification does not, in my opinion, assist. The Defender is entitled to know in precisely which situations he requires to seek the consent of a female for the purposes of the order.

The issue of clarity is not assisted when one looks at the qualification regarding consent. I have already commented about 'accosting' consensually. An initial approach is permitted for the sole purpose of the Defender seeking consent. The Defender however can approach or follow a lone female on one occasion for that purpose. He can only ascertain whether she consents to his approaching or following her if he actually catches up with the female concerned and communicates with her. What constitutes an initial approach? How long does the Defender have to ascertain whether the lone female will or will not consent for the Defender to remain in her company? Does he have to seek her consent immediately? I refer to the scenario of the waiting room or park bench. What does expressed consent entail? Can it be constituted by actions or simply words? It seems to me that expressed consent may be different from express consent. To give her consent, does the female require to know who the Defender is and, in particular, his history? It does seem to me that his identity and history would be material factors for consideration by a lone female. If the Defender does not get the expressed consent from the female, can he approach her again after a passage of time has elapsed or in the event of a change in circumstances?

The issue of clarity is not simply to be examined from the perspective of a person who is subject to the order. As is noted by Lord Bingham in B v Avon and Somerset Constabulary 'Such clarity....is scarcely less essential for any authority responsible for policing compliance with the order.' As is likely in cases such as the present, particularly in the present climate, a person with an offending history such as the Defender gains a certain public notoriety courtesy of media coverage. As a result the authorities may be under a greater pressure to try and ensure nothing occurs which might result in any blame being apportioned to them in the event of anything adverse occurring. This culture is apparent from the evidence of Detective Sergeant Young. On a number of occasions that officer referred in his evidence to the protection of the public being the primary consideration. That view is wholly appropriate. However, the officer then conceded on a number of occasions that whilst balancing this consideration with the rights of the individual, the former was given greater weight than the latter. I further refer to the terms of the order initially sought following the meeting in July 2006 and indeed the crave as initially framed as compared to what is now sought. The terms of this proposed order were said by Detective Sergeant Young to be viewed by the persons attending the meeting as addressing the perceived risks posed by the Defender but going no further than that. Might I suggest after the initial reaction to the Defender's actings, calmer reflection of all relevant issues has resulted in a significantly less oppressive order being sought, leaving aside any continuing inadequacies!

Accordingly, in light of this cultural atmosphere which surrounds persons acting in a manner similar to the Defender, it seems to me equally essential that the authorities entrusted to police such an order know precisely what persons such as the Defender can and cannot do. Simply leaving it for the operation of some 'well, of course, it doesn't cover that' interpretation will not do. Interpretation of this type of order cannot be left to chance in light of the potential consequences. I have already indicated a problem which could arise in interpreting 'communicating in person.' Further, as Detective Sergeant Young conceded, if a police officer noted the Defender in the company of a lone female, he would immediately have a suspicion that the order was being breached. He hoped any officer in that situation would investigate. The impression I gained was that this would be expected even if there was nothing per se concerning about the situation apart from the two persons being in each other's company. The greater the dubiety about the order, the greater opportunity there is for this to occur. If the officer is not satisfied following his investigation, then it was anticipated that the Defender would be arrested.

Whilst still on the issue of clarity and purely as a comparative exercise, it is worthwhile considering the terms of the orders sought in the English authorities to which I was referred by counsel. In all the terms of the orders sought seem to me to be far clearer than the one presently sought. Even in Regina v D 2006 1WLR 1088 where the terms of the order sought was to prohibit approaching or communication, the prohibition related to named persons. Likewise in Chief Constable, Grampian Police v Beech 2002 SLT (Sh Ct) 106 the terms of the order seem to me to be specific and, with respect to the framer, far clearer when compared with the terms of the present crave.

There is one further issue regarding clarity. As Lord Bingham remarked 'the order should be expressed in simple terms, easily understood by those who, like the appellant, are not very bright.' Doctor Switzer observed that because of the nature of the Defender's condition, the order needed to be very plain, black and white, concrete, with no shades of grey to avoid misinterpretation. He gave this response in answer to a question that the order required to be straightforward, basically that the Defender did not go near a lone female. The greater the dubiety, the greater opportunity for misinterpretation which, as Doctor Switzer observed, may not be deliberate.

Having considered issues of clarity which the terms of the order sought raises, I now wish to turn to the issue of whether the terms of the order are proportionate. In terms of section 107(2) of the Sexual Offences Act 2003, a sexual offences prevention order may only include such prohibitions as are necessary for the protection of the public from serious sexual harm. This has been interpreted in England in R v Collard 2004 EWCA Crim 1644 as requiring the order to be tailored to the purported task. The order must not be oppressive or disproportionate. Lord Bridge in B v Avon and Somerset Constabulary remarked at 354F 'If the order is wider than is necessary for the purposes of protecting the public from serious harm from the Defendant, the order will not meet the requirements of the legislation and will fall foul of the Convention requirement that the means employed, if restrictive of guaranteed rights, should be necessary and proportionate to the legitimate ends towards which they are directed.' Lord Bridge was considering the terms of section 2(4) of the Crime and Disorder Act 1998. That provision is virtually the same as the terms of section 107(2). I would further refer to the recent as yet unreported decision of Sheriff Pyle in Inverness in The Highland Council v Dewar 13^th June 2007. Sheriff Pyle observed in relation to an application for an anti social behaviour order that if conditions go further than prohibiting behaviour that is illegal and actually restrict a person's liberty, there is a burden on the person seeking the latter prohibition to prove the necessity of such an order.

Applying these principles to the order sought by the Pursuer, I firstly consider that paragraphs (iii) and (iv) are unnecessary. I firstly refer to the observations I made earlier to these provisions. In light of these previous observations, I consider certain parts of paragraph (iii) and (iv) are wider than necessary and indeed are superfluous. Further, the terms of paragraph (iv) seem to me to be in conflict with the those of paragraph (i). However, I cannot see how the provisions of paragraphs (iii) or (iv) add anything to paragraph (i). If a person causes and permits any lone female to enter a property or vehicle, assuming the Defender is present, then the Defender is alone with that person.

Turning to paragraph (i) again for reasons I have already given, I do not consider that these terms have sufficient clarity. Further, if 'being alone with or remaining' covers the scenarios to which I referred, and I see no logical reason why that phrase does not, I consider that the terms are too wide in light of all the circumstances including the behaviour of the Defender.

In rejecting paragraph (i), it could be suggested that paragraphs (iii) and (iv), albeit amended to take account of my previous observations, should be part of any order. There are, however, a number of problems. The Defender has not been involved in an incident in which he has been alone in a vehicle with a female. The taxi driver was in the cab. Likewise, if he was on the same bus as M/s Keiro, the driver at least was aboard. The same applies in respect of a place of residence. Further, if there was no reference to consent, the prohibition would be far too wide. The Defender would be prohibited from being in the company of a female in those scenarios even if she consented. Reference to consent, however, raises the problems already mentioned.

Turning to paragraph (ii) again for reasons already given, I do not consider the words 'approaching', or 'communicating' give the provision sufficient clarity. Further, again looking at the meaning of both words, I consider that the terms cover such a range of circumstances that they are too wide. The same criticisms can be made of 'follow.' Even if it is for the moment accepted that for the Defender to follow a lone female as envisaged by the order, he must have that intention, that does not seem to me to assist. Whilst the Defender may know when he is following a lone female, can a person who is policing the order know this? The Defender might be intentionally following a lone female from a distance in the High Street, Perth on a Saturday afternoon when the street is busy. Someone observing might have difficulty determining that he was following the female. Twelve hours later, the Defender may be walking home in the High Street and there just so happens to be a female the same distance in front of him. They are walking in the same direction. No one else is in the street. To what conclusion would the observer, perhaps on CCTV, come? I would suggest that the conclusion in the former would be that the Defender was not following the female, but that he was in the latter, albeit these conclusions would be erroneous. These same observations could also be made regarding 'approach.'

This then leaves the Pursuer with 'accost'. Before I turn to consider the use of that word however, I wish to address issues regarding bail and also the terms of the probation order to which the Defender is presently subject. In evidence a comparison was drawn between the terms of the order now sought and the conditions of bail and probation orders. In particular Detective Sergeant Young was questioned about the operation of additional conditions attaching to a bail order. Such conditions may often prohibit the accused from approaching named persons or from entering a specific location. The officer indicated that no problems were encountered in the policing of bail orders with such additional conditions. However, such additional conditions are far more specific than the provisions of the order sought in the present application. The prohibition inevitably refers to specific persons or places. The present application does not do this. Further, it should not be lost sight of that an accused person has to consent to the additional conditions, albeit there may be an element of the lesser of two evils in so consenting. If he does not consent, he will inevitably be remanded in custody. The maximum penalty for a breach of a bail condition in terms of section 27 of the Criminal Procedure (Scotland) Act 1995 is three months imprisonment. Finally, a bail order is normally in force for about a year, often less in summary proceedings. By comparison, the present order, if granted, is imposed on the Defender. By his opposition to this application, he clearly does not consent to the imposition of the order or its terms. Further, the minimum duration of the order is five years although the Pursuer seeks an order for ten years. There is accordingly a significant difference in my opinion between bail and the order sought in the present application.

Similar observations can be made regarding the conditions of the probation order to which the Defender is presently subject. Again it is consensual. Again, if he does not consent, there is a reasonable prospect that a custodial sentence will be imposed. Further, the present order is subject to frequent automatic review at which the court can amend the order. The Defender can further apply to have the terms of the order amended. The present duration of the probation order is three years. If the Defender was alleged to have breached a condition of probation the circumstances would require to be considered by his supervising officer. If satisfied that a potential breach had occurred, a report would require to be submitted by his supervising officer to a sheriff. In light of the breach report, a sheriff would consider whether the Defender should be cited to a hearing or whether a warrant should be granted for his arrest. The whole procedure for enforcement is more cumbersome and is subject to a number of persons with potentially different view points considering matters before any warrant was issued for the arrest of the Defender if one is indeed issued. Indeed, one of the arguments put forward by the Pursuer for the grant of the present order, when this probation order is in force, is the immediacy of the enforcement procedure. If officers form the view that the Defender is in breach of the order, then they can arrest the Defender immediately without a warrant. In addition, even if the breach of the probation order is established, the maximum sentence which could be imposed upon the Defender would be three months imprisonment. Accordingly, whilst I accept that clause (c) of that order is virtually the same as paragraph (i) of the order presently sought, there are in my opinion good reasons for a more critical examination of the provisions sought in the order presently sought.

'Accost' is defined in the 2^nd edition of the Oxford Dictionary of English as meaning 'to approach and address boldly and aggressively.' Definitions of the word in the recent past have also included stopping a person and further soliciting sexually. It seems to me that 'accost' is readily understood. It has the necessary clarity. It struck me during submissions that this word neatly covered all aspects of the Defender's behaviour which cause concern. If consideration is given to the incidents in which the Defender has been involved since he came to the United Kingdom, it seems to me that all incidents including those of a general nature as set out in finding in fact 28 are covered by 'accost.' It is further difficult to envisage a situation in which a female is on her own in a house or car with the Defender against her will without her having been previously accosted or being accosted at that point. It further strikes me that a prohibition against the Defender accosting a lone female is not unduly restrictive. It does not per se prevent the Defender approaching or communicating with a female. It however prevents him from coming close to a lone female or engaging with her in social intercourse in such a manner that makes her apprehensive. It strikes me that such a prohibition, however, has the potential to strike at conduct which might not reach the standard which would be required to constitute a breach of the peace. In that event, it gives the public increased protection and for reasons to which I have previously referred, I am satisfied in the circumstances that such a prohibition appears necessary. In addition, I cannot see anyone being consensually accosted! According, if the order were a prohibition against the Defender accosting a lone female, I do not anticipate any requirement to have the prohibition lumbered with that qualification and all the problems it creates. I further wonder why the order should be restricted to lone females as opposed to females in general. However, the order should not be wider than is necessary. From the events involving the Defender and members of the opposite sex, it does appear that it is when a female is alone that the Defender acts in a way which causes concern.

If I were to make an order which prohibits the Defender from accosting a lone female, it does not strike me as being so restrictive that it interferes with the Defender's life to any significant extent. I don't consider if I were to pronounce an order of that nature that the Defender's rights under the European Convention of Human Rights would be prejudiced. In effect, whilst such an order might cover conduct which might not constitute criminal behaviour, nonetheless a person should not engage in behaviour which amounts to accosting a female. Further, a person can easily go about one's normal life without accosting another.

Having come to this conclusion, I now turn to whether the order is necessary in light of the existence of the probation order - R v Ali Badiei 2005 EWCA Crim 970 and indeed the terms of the criminal law generally - R v Carl Leslie 2006 EWCA Crim 847. In regard to the first point, Sheriff Principal Bowen in The City of Edinburgh Council v Gibson 2006 SLT (Sh Ct) 49 recognised in relation to anti social behaviour orders that the different methods of enforcing an anti social behaviour order when compared to an interdict could justify the granting of both. There was an immediacy in relation to the former. Detective Sergeant Young recognised this clearly when comparing enforcement of the current probation order with the steps which could be taken if the Defender was perceived to have breached a sexual offences prevention order. I have already made reference to the differences in the likely procedures invoked in the event of the Defender breaching either order. There is no doubt that there is an immediacy to the enforcement of a sexual offences prevention order. Further, in Chief Constable, Grampian Police v Beech Sheriff Cusine observed at 108D that whilst the Defender in that case was being constantly monitored by social workers and police, the court had no power over these agencies. Accordingly the court was entitled to put in place whatever mechanism it felt appropriate. The Crime and Disorder Act 1998, in that case, did not require the court to have regard any other measures which were in place. In that case, Sheriff Cusine continued the interim order sought. In addition, the probation order was made in terms of sections 228 and 229A of the Criminal Procedure (Scotland) Act 1995. The terms of the order accordingly are subject to a review periodically. There is nothing to stop the Sheriff carrying out the review to remove the third additional condition of the probation order. Indeed, that power to amend the terms of such an order is specifically provided in terms of section 229A(6) of that Act. Finally, the Defender committed the second offence whilst he was subject to a bail order in respect of the first offence. The nature of the offences was similar. His commission of the second offence suggests that the imposition of bail did not result in a modification of his actions. Sentence had been deferred upon the Defender for him to be of good behaviour at the time of the second offence. During this period the Defender behaved in a similar manner on at least one further occasion although no criminal proceedings were instituted. His being in a position of trust did not preclude the Defender from behaving in the manner which gives such cause for concern. Whilst there have been no further incidents whilst the Defender has been subject to probation, he has, at the same time, been subject to an interim sexual offences prevention order.

Turning to the second point, as I have already observed, a prohibition against the Defender accosting a female, prevents the Defender from acting in a way which is criminal. In addition, it might prevent his acting in a manner which was not. It might also prevent the Defender from putting himself in a situation in which firstly he might be rendering himself liable for a criminal prosecution. Further, it might prevent the Defender from putting himself in a position where a female is affected prejudicially by his behaviour.

In all the circumstances I consider that the order is necessary notwithstanding the existence of the probation order and indeed the criminal law generally.

The next issue is the duration of the order. The Pursuer sought an order for ten years. I am going to make an order which will endure for five years. It has to be borne in mind that the Defender was prosecuted for both offences under summary procedure. Whilst I appreciate that the present Pursuer is separate from the prosecution authorities, nonetheless the choice by the Crown was to prosecute the Defender under summary procedure on both occasions. This suggested that the prosecution considered that the offences, whilst serious, were not of such seriousness that the penalty available to the court under summary procedure was insufficient to mark the nature of the offences. Further, the choice of prosecution under summary procedure denied the court of the power to impose an extended sentence, which, of course, is available under solemn procedure, in the event of a custodial sentence of any duration being imposed. Further, whilst I accept that for the females concerned their experiences at the time of the offences were undoubtedly most unpleasant and frightening, the fact remains that there are more serious and unpleasant sexual offences which are unfortunately committed in society. In addition, the Defender's history of committing such offences or acting in such a way is relatively recent. Further, from the evidence led the period over which the Defender behaved in the manner which prompted the present application was relatively short. There is no evidence of the Defender having a long history of so behaving. There is no evidence of the Defender behaving in a similar manner until he came to Perth. In all the circumstances, I consider that an order for the minimum period is appropriate weighing up all factors.

I finally wish to deal with the issue of the Defender's rights in terms of the European Convention of Human Rights. Counsel disagreed as to the manner in which I should consider these matters. Counsel for the Defender made reference to his client's rights in terms of Articles 8, 11, and 12. As I have already touched on, I do not consider that I require to deal with this matter apart from observing that the order which I shall make in this application, in my opinion, does not require any detailed consideration as to its effect upon the Defender's convention rights. Having regard to the terms of the order I have granted, I do not consider that there is any question of the Defender's rights in terms of the Articles of the Convention referred to being in any way infringed.

The parties were agreed that a hearing should be assigned to deal with the question of expenses. I have done so. This hearing will further give parties the opportunity to consider the implications of an article which appeared in the Sunday Herald of 9^th April 2007 and was brought to my attention by the Defender's counsel, Mr MacDonald. I have to say that I have some concerns firstly as to the content of that article, some of which, at first glance, appears to be inaccurate. The assigning of the hearing will give the Pursuer's counsel, Mr Smith, the opportunity to investigate the circumstances surrounding the remarks allegedly attributed to his client. I have further concerns as to remarks which appeared in the Scotsman prior to the conclusion of evidence in this case. These remarks were said to have been made by the Defender. This clearly is a high profile case and, as I have said, I have concerns that remarks attributable to the parties and comment on the proceedings themselves as opposed to the reporting of the proceedings themselves have appeared in the press prior to this decision being issued. No doubt counsel for both parties will consider what matters they wish to raise in light of either or both articles.

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT PERTH

SUMMARY APPLICATION UNDER SECTION 105 OF THE SEXUAL OFFENCES ACT 2003

Court Ref: B143/06

WRITTEN SUBMISSIONS BY COUNSEL FOR THE PURSUER

in the cause

THE CHIEF CONSTABLE,

TAYSIDE POLICE, Police Headquarters, West Bell Street, Dundee, DD1 9JU

PURSUER

against

ROBERT LESLEY BASTERFIELD (AP), residing at Flat A, 89 Scott Street, Perth, PH2 8JR

DEFENDER

1. INTRODUCTION

1.1 In this summary application, The Chief Constable of Tayside Police ("the pursuer") seeks a Sexual Offences Protection Order ("SOPO") against Robert Lesley Basterfield ("the defender"). The terms of the order sought are as set out in Crave 1 of the Closed Record, as amended. For ease of reference, the terms of Crave 1, in its amended terms, are available to the court as a paper apart.

1.2 In support of this application, the pursuer led evidence before the court on 26^th, 27^th and 28^th February 2007. The evidence, referred to in more detail below, comprised the evidence of seven witnesses, which was presented together with an Inventory comprising 17 documentary productions, and a Joint Minute of Admissions. At the conclusion of the pursuer's proof, the defender indicated that there would be no witnesses led for the defender, but rather that a further Joint Minute of Admissions would be adjusted between the parties and presented at a later date. That Joint Minute of Admissions is now before the court.

1.3 The application now calls before the court on 3 April 2007 for submissions by each party. Both parties agreed, with the approval of the court, that written submissions would be of assistance, though it is understood that neither party need be confined solely to those submissions reduced to writing. In any event, both parties may require to make further submissions at the bar in answer to matters raised by the other, and to respond to matters raised by the court.

1.4 These written submissions for the pursuer fall into four broad parts: (i) the relevant statutory provisions are set out, with particular reference to the test to be applied by the court in considering an application for a SOPO. Where appropriate, the statutory provisions are discussed under reference to reported cases, copies of which are contained in the pursuer's bundle of authorities; (ii) the evidence in the case is discussed, though not fully rehearsed, in the context of the statutory test and the caselaw; (iii) the impact of the European Convention on Human Rights and Fundamental Freedoms ("ECHR") is discussed; and (iv) the submissions for the pursuer are thereafter summarised.

1.5 Ultimately, it will be submitted for the pursuer that the evidence before the court is sufficient to discharge the statutory test, namely that the order sought is necessary and proportionate, and should therefore be granted as first craved.

2. STATUTORY PROVISIONS

2.1 Unless otherwise stated, all references are to the Sexual Offences Act 2003 ("the Act").

2.2 Section 105 provides that a chief constable may apply for a SOPO in respect of a person who has been convicted of an offence listed in paragraph 60 of Schedule 3 to the Act (s.105(1)(a)(i)) and where that person has, since the commission of that offence, acted in such a way as to give reasonable cause that it is necessary for such an order to be made (s.105(1)(b)). There are two stages to this first leg of the statutory test.

2.3 Firstly, it must be shown that the defender has committed what might be called a "qualifying offence." The qualifying offences are set out in paragraph 60 of Schedule 3 to the Act and include those set out in paragraphs 36 to 59C and other offences where the court in imposing sentence determines that there was a significant sexual aspect to the offender's behaviour in committing the offence. It should be noted at this stage that section 92 provides that where the sentencing court so determines, and where a certificate to that effect is issued by the court in terms of s.92(2), that certificate shall be probative and shall be sufficient proof of the fact that the person was convicted of a qualifying offence for the purposes of Part 2 of the Act, including section 105.

2.4 Secondly, where a qualifying offence has been committed, the chief constable must demonstrate that since the commission of that qualifying offence, the defender has acted in such a way as to give reasonable cause that it is necessary for such an order to be made. This requirement calls upon the chief constable to carry out an assessment sufficient to determine whether the order is necessary. The test to be applied in determining this question, it is submitted, is substantially the same as that later to be applied by the court, but importantly, this pre-determination of the necessity of the order must be made by the chief constable in order to meet the second stage of the first leg of the statutory test as set out in section 105(1)(b).

2.5 Section 105(3) provides:

"(3) The Sheriff may make the order where satisfied-

that the person's behaviour since the conviction or finding makes it necessary to make such an order, for the purposes of protecting the public or any particular members of the public from serious sexual harm from the person; and

-

It is submitted that s.105(3)(b) does not apply in this case.

Section 105(3), under reference to section 106(3) defines "protecting the public...from serious sexual harm" as follows:

"(3) "Protecting the public or any particular members of the public from serious sexual harm from the defendant" [sic] means protecting the public in the United Kingdom or any particular members of the public from serious physical or psychological harm, caused by the defendant [sic] committing one or more offences listed in Schedule 3."

In this context, "harm" is something short of "injury" (R v Rampley (Kim) [2006] EWCA Crim 2203 at para.s 20 - 23) and it is submitted that "serious psychological harm" includes fear and distress.

2.6 This second leg of the statutory test requires the court to be satisfied that the order sought is necessary for the purposes specified. This second leg of the statutory test, it is submitted, is usefully approached in two stages:

2.7 Firstly, the court must be satisfied that there is sufficient material on which to make a determination (R v G [2006] EWCA Crim 1994). It is accepted that it is incumbent upon the pursuer to put sufficient material before the court to show that the statutory provisions have been met (R v Halloren [2004] 2 Cr App R (S) 301; R v D [2006] 1 WLR 1088). That material must relate to the defender's behaviour since the commission of the qualifying offence;

2.8 Secondly, the court must be satisfied that the order is necessary and not simply appropriate (R v Halloren; R v D). In order to meet this test, the court must conduct a risk assessment, and consider the likelihood of the defender committing a further Schedule 3 offence and, in that event, the likelihood of the victim of such an offence (and the person(s) intended to be protected by the order) being caused serious physical or psychological harm as a result (R v D per Scott Baker L J at para. 11). In short, the pursuer must satisfy the court that it is likely that the defender will commit a further Schedule 3 offence and accordingly, that the order is necessary to protect against serious harm being caused by the defender to the victim of such an offence.

2.9 Section 107 makes further provision relating to the effect of the order and its terms. The Act provides that simply that the effect of the order is to prevent the defender from doing anything prescribed in the order (s.107(1)(a)) for a fixed period of not less than 5 years (s.107(1)(b)). A SOPO is, accordingly, by its nature a prohibitive or "negative" order. Section 107(2) provides:

"(2) The only prohibitions that may be included in the order are those necessary for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant [sic]."

Section 107(2) should therefore be seen as imposing a requirement of proportionality: the order should go no further than is necessary to meet the risk. This might usefully be described as the third leg of the statutory test.

2.10 An important and related point is that as well as being no wider than necessary (i.e. proportionate), the terms of the order must be sufficiently clear and precise. Dealing with an similar order under Section 2 of the Crime and Disorder Act 1998 (the predecessor of the provisions now contained in Section 104 of the Act as they apply to England and Wales), Lord Bingham of Cornhill, then Chief Justice sitting in the Queen's Bench Division, said:

"If anyone is the subject of a prohibitory court order for breach of which he is liable to severe punishment, that person is entitled to know, clearly and unambiguously, what conduct he must avoid to comply with the order. Such clarity is essential for him. It is scarcely less essential for any authority called upon to decide whether the terms of the order have been broken. The order should be expressed in simple terms, easily understood by those who, like the appellant, are not very bright. If the order is wider than is necessary for the purposes of protecting the public from serious harm from the defendant, the order will not meet the requirements of section 2(4) of the Crime and Disorder Act 1998 and will fall foul of the Convention requirement that the means employed, if restrictive of guaranteed rights, should be necessary and proportionate to the legitimate ends towards which they are directed."

B v Avon and Somerset Constabulary, [2001] 1 WLR 340

per Lord Bingham of Cornhill, CJ at 354 para. 33

2.11 The three legs of the statutory test might therefore be summarised as follows:

(i) Prior to the order being sought:

(a) the defender must have committed a qualifying offence (s.105(1)(a)(i), Sch. 3, para. 60); and

(b) since the commission of that offence, the defender must have behaved in such a way as to give the pursuer reasonable cause to believe that an order is necessary (s.105(1)(b)).

(ii) The court must be satisfied that the order is necessary (s.105(3)), and must therefore:

(a) have sufficient material on which to make a determination; and

(b) conduct a risk assessment (on the basis of the defender's conduct since the commission of the qualifying offence) to determine that is it likely that the defender will commit a further Schedule 3 offence and conclude accordingly, that the order is necessary to protect against serious harm being caused by the defender to the victim of such an offence (s.105(3)(a)).

(iii) The court must be further satisfied that the order contains only those prohibitions necessary to protect against the risk, i.e. the court must be satisfied that the order is proportionate (s.107(2)).

2.12 Finally, it is worth pausing to note at this stage that whilst obviously the court must be careful to ensure that the statutory tests are met and that any order granted is both necessary and proportionate, it was observed by the Court of Appeal in England in the case of R v D, that "Parliament by this legislation has spelt out strong measures for the protection of the public and individual members of it from the actions of sex offenders and it is important that the courts should give effect to it" (R v D per Lord Justice Scott Baker at 1095, para. 34).

3. EVIDENCE

3.1 Much of the factual evidence in this case is not understood to be in dispute. Rather, the issue for the court is whether the evidence, even taken at its highest, is sufficient to meet the statutory test (and the ECHR). In general terms, it is submitted that the pursuer has placed before the court sufficient evidence to meet the statutory test outlined above and, that if met, the statutory test is compatible with the ECHR (to the extent that necessary and proportionate restrictions of the defender's Convention rights are permitted). It is intended in the paragraphs which follow, to summarise and discuss the evidence within the framework of the statutory test and to justify under more detailed reference to the evidence, the pursuer's principal submission that the order sought is necessary and proportionate, and should therefore be granted as first craved. The discussion of the evidence which follows is not intended to be exhaustive, nor is it considered appropriate in these submissions to fully rehearse the evidence before the court.

3.2 It is useful to make two preliminary points of general importance at this stage: Firstly, it is submitted that the court should apply the civil standard of proof in this case, albeit applied with the strictness appropriate to the seriousness and implications of the matters to be proved (B v Avon and Somerset Constabulary). Secondly, the court will note that with the exception of those matters contained within the second Joint Minute of Admissions, which are obviously matters not in dispute, the defender has elected not to lead any evidence in support of his positive averments in answer on record. Therefore, whilst certain passages of factual evidence for the pursuer were clearly challenged in cross examination for the defender, no evidence has been led in support of the positive averments in answer and as such, the court is invited to accept the pursuer's evidence, to the extent that where answered, those answers are unsupported.

3.3 Turning to the first leg of the statutory test described above, it is submitted that it is clear that the pursuer has shown that the defender committed a qualifying offence for the purposes of s.105(1)(a)(i) and Sch. 3, para. 60 of the Act. It is not disputed, as set out in Article of Condescendence 4 and the Answer thereto, that the defender was convicted of a qualifying offence on 11 March 2005. Reference is made to the further detail provided on record, which was spoken to in evidence by DC Fitzgerald, and to the probative Certificate for the purposes of section 92(2) of the Act, which forms Pro. No. 2 of the pursuer's Inventory.

3.4 Likewise, it is submitted that the court should have no hesitation in finding that the pursuer has presented sufficient evidence of enquiries and risk assessment sufficient to discharge the burden imposed by s.105(1)(b). The material on which the pursuer was entitled to conclude that since the commission of the qualifying offence, the defender had behaved in such a way as to give reasonable cause to believe that an order is necessary (s.105(1)(b)), is the substantially the same material as was later placed before the court. For that reason, and standing the pursuer's submission that the risk assessment to be carried out by him in order to pre-determine necessity and meet s.105(1)(b) being substantially the same exercise as later requires to be carried out by the court, it is not intended to rehearse that material here. Rather, the court's attention is drawn to the evidence of DCs Fitzgerald and McGranaghan, who spoke to their regular contact with the defender and to the risk assessments carried out (reference is made to Article 5 of Condescendence and to Pro. No's 1 and 9), and further to the evidence of Dr Switzer and DS Young. All of these witnesses spoke to some extent to the extensive enquires made by the police officers at the pursuer's behest, and to the careful consideration given by the police to the question of whether a SOPO was necessary.

3.5 In particular, the court will recall the evidence of DC Fitzgerald and DS Young concerning the multi-disciplinary Crisis Management Meeting ("CMM") held on 7 July 2006. Reference is made to the extract of evidence of the examination-in-chief of DS Young at pages 12 - 20 (the corresponding passage of cross-examination is at page 32 et seq.). Whether or not the court ultimately accepts the conclusion reached by the pursuer that the order sought was and is necessary, it is submitted that there is clear evidence that the pursuer conducted thorough and careful enquiries and risk assessment, and that on the basis of the material available, was well entitled to conclude that he had reasonable cause to believe that the order was (and is) necessary.

3.6 Turning now to the second leg of the statutory test, it is submitted that the pursuer has placed before the court ample evidence on which to conduct a risk assessment to determine that is it likely that the defender will commit a further Schedule 3 offence and conclude accordingly, that the order is necessary to protect against serious harm being caused by the defender to the victim of such an offence (s.105(3)(a)). Such an assessment must be made on the basis of the defender's conduct since the commission of the qualifying offence and it is intended to summarise, on the following timeline, the evidence which the pursuer urges the court to accept as being menacingly eloquent of the risk posed by the defender:

(i) 11 March 2005

Conviction at Perth Sheriff Court in respect of a Breach of the Peace committed at Bridge of Earn on 18 November 2004. This is the qualifying offence for the purposes of s.105(1)(a)(i) and Sch. 3, para. 60 of the Act. Reference is made to Article 4 of Condescendence and to the Answer thereto. Reference is made to Production No's 2, 13 and 17, and to the evidence of Victoria Keiro, who was the defender's victim on this occasion. Reference is made to the parties' first and second Joint Minutes of Admissions relating to the disposal in this case, which is considered in more detail, below. It is submitted that the nature of this offence, and its points of similarity with later conduct, together with the effect on its victim, are of relevance in conducting the required risk assessment

(ii) 2 April 2005

Incident at the Last Cast public house in Bridge of Earn during which the defender is said to have stared at and followed a female, making her feel uneasy. Reference is made to Article 7 of Condescendence, to the evidence of DC Fitzgerald and to Pro. No. 5 at page 2.

(iii) 20 & 22 July 2005

Incidents on the North Inch in Perth during which the defender was witnessed in the late evening and early hours of the morning. Reference is made to Article 7 of Condescendence, to the evidence of DC Fitzgerald and to Pro. No. 5 at pages 7 & 8. It is submitted that these incidents, when considered in context, further exhibit the defender's worrying mental condition. In addition, these incidents were witnessed at the same place as formed part of the locus for the commission of a further offence, discussed below.

(iv) Rugby Season 2005 - 2006

The court is referred to the evidence of Kevin Brown, who spoke to the defender's conduct whilst a member of the Perthshire Eagles Rugby Club. Mr Brown gave evidence of the defender's behaviour which he described as being generally odd and inappropriate (including participating in a training session on a public sports field wearing only his underpants and calling "chat-lines" advertised in pornographic magazines on the team bus). More particularly, Mr Brown gave evidence relating to his observations of the defender's interaction with women associated with the Rugby Club.

It is submitted that this evidence is significant, and indicative of the defender's predisposition to approach females inappropriately. The court will recall Mr Brown's evidence that he twice observed the defender leaving the Rugby Club at the same time as females and being told subsequently of their concerns about the defender's behaviour. Having expressed his own concerns in evidence about the defender's behaviour, Mr Brown's assessment, based on his own contact with the defender, was ultimately that "he [the defender] doesn't see women as equals, only objects..." Reference is made to Article 8 of Condescendence and to Pro. No. 5 at page 3.

(v) 18 February 2006

Incident at North Inch and elsewhere in Perth giving rise to the conviction at Perth Sheriff Court on 4 July 2006 for Breach of the Peace. Reference is made to Article 11 of Condescendence and to the Answer thereto. Reference is made to Production No's 3, 14, 15 and 16, and to the evidence of DCs Fitzgerald and McGranaghan, who spoke to the statement of Maria Dominguez or Santos who was the defender's victim on this occasion. Reference is made to Pro. No. 10.

It is submitted that the evidence of this incident and the defender's subsequent conviction is compelling. Indeed, it is submitted that there can be no better evidence of the likelihood of the defender committing a further Schedule 3 offence than the fact that since the date of the qualifying offence, he has done so. Moreover, the court's attention is drawn to the circumstances of the incident in which a lone female was followed and accosted, the locus and the effect on the victim.

(vi) April 2006

Incident at a taxi rank close to Sportsters' Bar in Perth after a Rugby Club function at the end of April 2006. Reference is made to Article 9 of Condescendence, to Pro. No .5 at page 5 and particularly, to the evidence of Mr Andrew Flavell. It is submitted that Mr Flavell gave compelling evidence of an incident eloquent of the defender's predisposition to inappropriately approach females and a clear indication of the potential effect his behaviour can have on the subjects of his unwanted attention. The court will recall that Mr Flavell specifically rejected the assertion, put to him in cross-examination (although no evidence has been led in support of the averments in answer to that effect), that the defender and his "victim" on that occasion were jostling for a taxi. The witness added: "he scared the living daylights out of that lassie."

3.7 It is submitted that the court is assisted in the required risk assessment exercise by the evidence of Dr Switzer, who psychiatrically assessed the defender and has reviewed much of the material available to the court, together with additional background material, which he referred to in evidence. The court will recall Dr Switzer's diagnosis of the defender as having a schizotypal disorder. Reference is made to the extract of evidence of the examination-in-chief of Dr Switzer at pages 8 - 10, where the disorder is explained by the witness. Discussing the accounts of various incidents, including some of those summarised above and others, Dr Switzer explained in evidence that the behaviour exhibited by the defender was consistent with his diagnosis of schizotypal disorder, which shares many of the traits of Asperger's syndrome of a person who is "cold, aloof..., does not understand normal social etiquette, certainly would not be able to spot normal social cues..." Dr Switzer further explained that the defender lacked any perception of why his behaviour towards women was inappropriate, exhibited a tendency to minimise offending behaviour and lacked any victim empathy. Ultimately, Dr Switzer concluded that:

"he [the defender] did not suffer from a treatable mental illness... And that he was at a high risk of re-offending due to the nature of the offence and the nature of his account, the offence, the minimisation, lack of victim empathy and his overall misunderstanding of wrong doing in this case is... So I felt that he was at risk of harm or certainly a distress to others in the future but that medicine had no place in trying to prevent that and in fact I further discussed this just coming towards the end of his admission and near to his discharge when I drop the Section with my consultant at the time and the Forensic Psychiatric Consultant Dr Whyte and we came to the agreement that this gentleman presented a rather worrying presentation it was not within the remit of psychiatry to prevent or enable us to prevent any further re-offending and he was in fact a danger and quite a worrying danger to others but not something we could help with."

Extract of evidence of the examination-in-chief

of Dr Switzer at pages 26 - 27 (emphasis added).

Dr Switzer further confirmed his opinion that the defender presents a special risk to females, that the schizotypal disorder he suffers from is usually a lifelong disorder and that in his view, a prohibition against being in the company of lone females without their consent would "go a long way towards preventing a risk." Notwithstanding rigorous cross-examination, Dr Switzer adhered to his diagnosis and assessment of risk.

3.8 The effect of Dr Switzer's evidence, it is submitted, is that the defender's conduct towards women is caused by, or may at least be explained by reference to, his schizotypal disorder. It follows that for so long as he suffers from that disorder, the defender is likely to behave inappropriately towards women. It is apparent from the nature and circumstances of the qualifying offence and his subsequent conduct (including his second conviction) that his inappropriate behaviour towards women is likely to manifest itself in criminal conduct and that the victims of that conduct are likely to be caused serious psychological harm (in the form of fear and distress) or worse. Such submissions are borne out in the opinion of Dr Switzer. If accepted, this evidence, together with the factual material available since the commission of the qualifying offence would, it is submitted, allow the court to conduct the required risk assessment and to readily conclude that it is likely that the defender will commit a further Schedule 3 offence and conclude accordingly, that the order is necessary to protect against serious harm being caused by the defender to the victim of such an offence (s.105(3)(a)).

3.9 In the event that the court accepts the pursuer's risk assessment of the likelihood of the defender committing a further Schedule 3 offence (and thereby concludes that the second leg of the statutory test to that extent is met), it is submitted that the evidence suggests he is likely to do so in circumstances likely to cause fear or great distress to those women. As such, the court is invited to accept that it is likely that (at least) serious psychological harm would be caused to the victim of any such offence.

3.10 Turning lastly to the third leg of the statutory test in this discussion of the evidence, it is submitted that there is sufficient material before the court from which it may conclude that the order sought is proportionate. That is, to conclude that the SOPO contains only those prohibitions necessary to meet the risk in accordance with section 107(2) of the Act. In considering proportionality, the court must clearly have regard to the precise terms of the prohibitions sought, the practical extent of those prohibitions and the duration of the order during which (without variation or discharge in terms of s.108) the order will remain in force.

3.11 Two general points are worth noting at this stage: Firstly, the terms of the order sought must be proportionate to the risk at the time when the order is made. However, it is submitted that in considering proportionality, it is legitimate to take into account the possibility that, should the risk decrease, be extinguished or otherwise change during the term of the order, the Act provides for its variation or discharge (and also for its renewal, where the risk continues beyond its term) (section 108). Therefore, so long as the order sought is proportionate to meet the risk as assessed at the time when the order is made, its longer-term proportionality or effectiveness need not necessarily be taken into account by the court. Secondly, whilst the pursuer submits that the terms of the order sought are necessary and proportionate, it is open to the court, to grant the order in such other terms as the court considers appropriate as being necessary and proportionate. In the event that the court is not prepared to grant the order in the terms set out in Crave 1, as amended, and for a duration of ten years, the court is invited to grant a SOPO in such other terms, or for such other period as the court considers necessary and proportionate in all the circumstances.

3.12 The prohibitions sought in the application before the court and as set out in Crave 1, as amended, are directed specifically towards the risk said by the pursuer to be posed by the defender. It is the pursuer's position, and it is submitted that this is amply borne out by the evidence before the court, that the defender presents a special risk to lone females. Accordingly, the prohibitions sought seek to prevent the defender from being in circumstances in which he could be presented with an opportunity to offend as previously. Each of sub-paragraphs (i) - (iv) of Crave 1 aim to set out, in clear and unambiguous terms, the circumstances in which the defender is prohibited from being in the company of lone females. In each case, the prohibition is tempered by the qualification that it applies except where the lone female has given her expressed consent for the defender to be in her company. Furthermore, the final "excepting" paragraph of Crave 1 makes clear that the specific prohibitions do not apply to an initial (first) approach by the defender to any lone female for the purpose of seeking her consent to be within her company.

3.13 The prohibitions sought are specifically directed towards direct contact between the defender and lone females and do not, for instance, seek to prohibit his communication with any lone female by any other means such as telephone or e-mail. The prohibitions are restricted to direct contact because that is how the defender has inappropriately approached females and offended in the past. In short, the prohibitions seek to go no further than necessary to meet the risk. The prohibitions are directed specifically towards the defender's likely victims and are not blanket prohibitions. It is submitted that they are carefully tailored and limited to meet the re-offending risk and to afford protection to the public and particularly to lone females. It is submitted that the order sought is proportionate and meets the third leg of the statutory test set out in section 107(2) of the Act.

3.14 In considering proportionality, it is submitted that the court may take into account the presence or absence of any other effective protective measures. In this case, it is anticipated that the defender will argue, inter alia, that the SOPO is neither necessary nor proportionate since the probation order ("PO") imposed by the court on 20 December 2006 now affords sufficient protection. Reference is made to Article 4 of Condescendence and to the Answer thereto, to Pro. No. 13 and to the parties' second Joint Minute of Admissions.

3.15 It is submitted by the pursuer that the PO granted on 20 December 2006 does not afford for same protection as that offered by the SOPO, for the following reasons: (i) the consequences for breach of the terms of the PO imposed in respect of a summary offence are considerably less than those which breach of a SOPO may potentially attract and as such, are less of a disincentive; (ii) the SOPO carries an immediate right of arrest for its breach and so can be acted upon quickly by police officers to immediately prevent harm; (iii) the prohibition in the PO against being in the company of lone females is in general terms and is imprecise; (iv) a breach of probation is generally detected and acted upon by the Social Work Department and results in a report of breach being sent to the sentencing court; (v) the process for dealing with a breach of a PO is often slow, whereas breach of a SOPO may result in the defender being arrested and brought to court to answer the alleged breach the next lawful day; (vi) the duration of a PO in respect of a conviction on summary complaint is restricted to 3 years and cannot be extended, whereas a SOPO provides long-term protection (subject always to variance or discharge); and (vii) a PO is principally designed to attempt to address offending behaviour and it's causes. It is likely to be ineffective where those causes are untreatable.

3.16 Finally, it is of significance that the SOPO, as originally craved was granted ad interim on 21 July 2006 and has been in force since then to date. The court will recall the evidence of DS Young to the effect that there has been no difficulty in its application and policing and that it has been effective. DS Young explained:

"There has been a considerable reduction in the receipt of any detrimental information regards Mr Basterfield since the introduction of that interim order."

Extract of evidence of the examination-in-chief

of DS Young at page 25.

4. ECHR

4.1 The defender avers, inter alia, that the order sought is contrary to his rights under Articles 8 and 11 of the ECHR. Reference is made to Article of Condescendence 13 and the Answer thereto. The pursuer's principal submission on this question is that where the statutory test in the Act is met, any restriction of the defender's ECHR rights are prescribed by law, permitted by the terms of the Act, which has the legitimate aim of public protection and which go no further than necessary and proportionate to meet that legitimate aim. The impact of each of Articles 8 and 11 are discussed in turn.

4.2 The pursuer must and does accept that the defender's rights under Article 8 are clearly engaged and restricted by the terms of the order sought. Article 8(2) allows interference with this right "as in accordance with the law and [where] necessary in a democratic society in the interests of... the prevention of... crime, for the protection of health or morals, of for the protection of the rights and freedoms of others." Adopting the reasoning of Lord Bingham of Cornhill in B v Avon and Somerset Constabulary (at page 355, para. 34) it is submitted that the prohibitions sought are in accordance with the law, being authorised by the plain terms of section 105. They have the objects of preventing crime, protecting health and morals, and protecting the rights and freedoms of others, all of which are legitimate objects under Article 8(2). Assuming, as the pursuer submits, that the prohibitions in the order sought satisfy the tests in sections 105(3) and 107(2) of the Act, it must be the case that they are necessary. Likewise assuming that they satisfy the test of proportionality in section 107(2), it must also be the case that they go no further than is necessary to serve that end. Accordingly, the combination of the requirements of the statutory tests amount to the same result as the requirements of Article 8(2) and if those are met, the interference with the right is justified.

4.3 The defender avers that his Article 11 right to freedom of association is infringed by the terms of the order sought. The pursuer submits that the defender's Article 11 rights are not engaged by the SOPO sought. As the language of Article 11 suggests, the right of freedom of association is concerned with the right to form or be affiliated with a group or organisation pursuing particular common aims (Young, James and Webster v UK (1981) 4 EHRR 38). Mere casual contacts, for instance with work colleagues or classmates, are not sufficient to establish an association; it involves a deliberate effort to set up an organisational structure. It is not a right to enjoy the personal company of others (McFeeley v UK (Commission) (1981) 3 EHRR 161).

4.4 The prohibitions sought in the SOPO before the court are all directed towards preventing the defender from being in the company of a lone female (without her expressed consent). It is submitted that where only two persons are involved (the defender and a lone female), there is no collective entity, no organisational structure and no "association" in the proper sense of Article 11. Accordingly, it is submitted that the defender's Article 11 rights are not engaged or infringed by the terms of the SOPO. If the pursuer's submission on that point is not accepted by the court, the provisions of Article 11(2) lend themselves to the same analysis as that set out above in respect of Article 8(2) and on that basis, any infringement of the defender's Article 11 rights would be justified.

5. SUMMARY OF SUBMISSIONS

5.1 The submissions for the pursuer may be summarised as follows:

(i) The defender was convicted of a qualifying offence for the purposes of s.105(1)(a)(i) and Schedule 3 on 11 March 2005;

(ii) After that date, the defender behaved in such a way as to give the pursuer reasonable cause to believe that it was necessary for a SOPO to be made;

(iii) The pursuer conducted thorough and detailed enquiries and risk assessments in determining that a SOPO was necessary;

(iv) The pursuer has placed before the court sufficient evidence to enable to court to consider whether the SOPO is necessary or not;

(v) To consider whether the SOPO is necessary, the court must conduct a risk assessment to consider the likelihood of the defender committing a further Schedule 3 offence and in that event, the likelihood that the victim of such an offence would be caused serious physical or psychological harm;

(vi) "Psychological harm" includes fear or distress caused by a non-contact sexual offence;

(vii) The evidence before the court indicates that the defender is likely to commit a further Schedule 3 offence and that the victim of any such offence would be caused serious physical or psychological harm;

(viii) The SOPO is accordingly necessary for the purpose of protecting the public and, in particular, lone females from that harm, in terms of s.105(3)(a);

(ix) The prohibitions contained in the SOPO sought only include those necessary to protect the public and in particular, lone females, from the risk posed by the defender (s.107(2));

(x) The SOPO sought is accordingly proportionate;

(xi) The SOPO is necessary, proportionate and effective;

(xii) The SOPO granted ad interim on 21 July 2006 has been effectively policed since that date and has been effective in reducing the incidence of behaviour on the part of the defender which the order seeks to prohibit;

(xiii) The defender's rights under Article 8 of the ECHR are infringed by the SOPO but such infringement is permitted in terms of Article 8(2);

(xiv) The defender's rights under Article 11 of the ECHR are not engaged and therefore not infringed by the SOPO;

(xv) Esto the defender's rights under Article 11 of the ECHR are engaged and infringed by the SOPO, such infringement is permitted in terms of Article 11(2)

(xvi) The SOPO should be granted in terms of Crave 1, as amended;

(xvii) Esto, the SOPO should be granted in such other terms and for such other duration as the court considers necessary and proportionate in all the circumstances.

5.2 Counsel for the pursuer shall, of course, seek to assist the court further as necessary.

3^rd April 2007

Counsel moved me to sustain the Pursuer's first plea in law and repel the Defender's pleas in law. Decree should be granted in terms of the amended crave one. Commenting upon the submissions made on behalf of the Defender, he did not have an issue with the law, both domestic and ECHR, set out in paragraphs 1-23. Counsel did observe that oppression was not a term of art. Further, reference to recent behaviour had to be relative in light of the whole evidence.

Turning to the statutory test for the granting of the order, counsel referred me to his written submissions. When referring to behaviour, he questioned the restriction referred to in paragraph 8 in that section of the Defender's submissions. There was nothing either in the legislation or case law which justified this restriction. The starting off point was the qualifying offence, namely 11^th March 2005 in the present case. All material thereafter was relevant. The notebook, Pursuer's production number 12 of process, was assumed to be the Defender's and was only an adminicle of evidence. The second conviction was recent in the context of the present case. In England, an order has been granted on the basis of a conviction and risk assessment. There was, in any event, other material available pointing to the necessity of the order.

Turning to the section of the Defender's submission concerning serious sexual harm, counsel did not consider that there required to be evidence of harm actually occurring in the previous incident. In any event that evidence was available. Likewise, he did not accept that serious psychological harm meant a diagnosable condition. He referred to the terms of section 106(3) and R v Rampley 2006 EWCA Crim 2203. The use of 'harm' as opposed to 'injury' in the legislation was significant. There was ample evidence of the victims being frightened. The victims suffering harm could be inferred. The fact that both prosecutions were by summary procedure were of no relevance. The order sought had a different function to a prosecution. The order was solely for the protection of the public.

Turning to the issue of necessity, this was the crux of the matter. The probation order was to address the Defender's behaviour and as a result of that the public might be protected. Such an order was insufficient to meet the risk posed by the Defender. His medical condition was untreatable and enduring. The interim order seemed to be working. The fact that consent qualified the prohibitions resulted in the order not being oppressive. Whilst the order was not black and white, it was comprehensible, satisfied the legislation and met the risk posed.

Turning to the issue of oppression, this was not a terms of art. The test to be met was set out in R v Collard 2004 EWCA Crim 1664. It was necessary and proportionate. The court could be redrafted by the court.

Turning to the Human Rights aspect, counsel rejected the contention that the order was unlawful by reference to section 6 of the Human Rights Act. Nor was the order disproportionate. The order sought did not breach articles 8, 11, and 12.

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT PERTH

SUBMISSION FOR THE DEFENDER

in the cause

B143/06

THE CHIEF CONSTABLE, Tayside Police, Police Headquarters, West Bell Street, Dundee DD1 9JU

PURSUER

against

ROBERT LESLEY BASTERFIELD, Flat A, 89 Scott Street, Perth PH2 8JR (A.P.)

DEFENDER

CONTENTS

(i) Introduction

(ii) Legislation

(iii) Summary of legal propositions

(iv) Discussion

I. Introduction

(i) The Defender seeks that his pleas in law 1 - 4 inclusive be sustained, and the Pursuer's pleas in law 1 and 2 repelled.

(ii) It is submitted that the Sexual Offences Protection Order ("SOPO") craved by the Pursuer should be refused in whole, in respect that the Pursuer has failed to meet the test set out within the terms of the Sexual Offences Act 2003 ("the 2003 Act).

(iii) In particular, the Pursuer has failed to demonstrate that there is a risk of serious sexual harm.

(iv) Further, the Pursuer has failed in any event to demonstrate that the order is necessary.

(v) That to grant the SOPO craved by the Pursuer would be oppressive.

(vi) Separatim, the SOPO craved is unlawful by dint of the operation of section 6(1) of the Human Rights Act in that it infringes the Defenders rights under the European Convention on Human Rights ("ECHR"), Articles 8, 11 and 12.

(vii) The Defender reserves the right to make oral submissions beyond the terms hereof and to respond to the submissions, both written and oral of the Pursuer.

II. Legislative background

The relevant provisions of the Sexual Offences Act 2003 are as follows:

s 105 SOPOs: further provision as respects Scotland

(1) A chief constable may apply for an order under this section in respect of a person who he believes is in, or is intending to come to, the area of his police force if it appears to the chief constable that-

(a) the person has been convicted of, found not guilty by reason of insanity of or found to be under a disability and to have done the act charged against him in respect of-

(i) an offence listed in paragraph 60 of Schedule 3; or

(ii) before the commencement of this Part, an offence in Scotland other than is mentioned in paragraphs 36 to 59 of that Schedule if the chief constable considers that had the conviction or finding been after such commencement it is likely that a determination such as is mentioned in paragraph 60 would have been made in relation to the offence; and

(b) the person has since the conviction or finding acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made.

(2) An application under subsection (1) may be made by summary application to a sheriff

(aa) within whose sheriffdom the person in respect of whom the order is sought resides;

(ab) within whose sheriffdom the person is believed by the applicant to be;

(ac) to whose sheriffdom the person is believed by the applicant to be intending to come;

(b) [within whose sheriffdom lies ] any place where it is alleged that the person acted in a way mentioned in subsection (1)(b).

(3) The sheriff may make the order where satisfied-

(a) that the person's behaviour since the conviction or finding makes it necessary to make such an order, for the purposes of protecting the public or any particular members of the public from serious sexual harm from the person; and

(b) where the application is by virtue of subsection (1)(a)(ii), that there was a significant sexual aspect to the person's behaviour in committing the offence.

(4) Subsection (3) of section 106 applies for the purposes of this section as it applies for the purposes of section 104 and subsections (2) and (3) of section 112 apply in relation to a summary application made by virtue of subsection (1) as they apply in relation to one made by virtue of subsection (1)(e) of that section

s 106 Section 104: supplemental

(1) In this Part, "sexual offences prevention order" means an order under section 104 or 105.

(2) Subsections (3) to (8) apply for the purposes of section 104.

(3) "Protecting the public or any particular members of the public from serious sexual harm from the defendant" means protecting the public in the United Kingdom or any particular members of that public from serious physical or psychological harm, caused by the defendant committing one or more offences listed in Schedule 3.

(4) Acts, behaviour, convictions and findings include those occurring before the commencement of this Part.

(5) "Qualifying offender" means a person within subsection (6) or (7).

(6) A person is within this subsection if, whether before or after the commencement of this Part, he-

(a) has been convicted of an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 5,

(b) has been found not guilty of such an offence by reason of insanity,

(c) has been found to be under a disability and to have done the act charged against him in respect of such an offence, or

(d) in England and Wales or Northern Ireland, has been cautioned in respect of such an offence.

(7) A person is within this subsection if, under the law in force in a country outside the United Kingdom and whether before or after the commencement of this Part-

(a) he has been convicted of a relevant offence (whether or not he has been punished for it),

(b) a court exercising jurisdiction under that law has made in respect of a relevant offence a finding equivalent to a finding that he is not guilty by reason of insanity,

(c) such a court has made in respect of a relevant offence a finding equivalent to a finding that he is under a disability and did the act charged against him in respect of the offence, or

(d) he has been cautioned in respect of a relevant offence.

(8) "Appropriate date", in relation to a qualifying offender, means the date or (as the case may be) the first date on which he was convicted, found or cautioned as mentioned in subsection (6) or (7).

(9) In subsection (7), "relevant offence" means an act which--

(a) constituted an offence under the law in force in the country concerned, and

(b) would have constituted an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 5 if it had been done in any part of the United Kingdom.

(10) An act punishable under the law in force in a country outside the United Kingdom constitutes an offence under that law for the purposes of subsection (9), however it is described in that law.

(11) Subject to subsection (12), on an application under section 104(5) the condition in subsection (9)(b) (where relevant) is to be taken as met unless, not later than rules of court may provide, the defendant serves on the applicant a notice-

(a) stating that, on the facts as alleged with respect to the act concerned, the condition is not in his opinion met,

(b) showing his grounds for that opinion, and

(c) requiring the applicant to prove that the condition is met.

(12) The court, if it thinks fit, may permit the defendant to require the applicant to prove that the condition is met without service of a notice under subsection (11).

s 107 SOPOs: effect

(1) A sexual offences prevention order-

(a) prohibits the defendant from doing anything described in the order, and

(b) has effect for a fixed period (not less than 5 years) specified in the order or until further order.

(2) The only prohibitions that may be included in the order are those necessary for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant.

(3) Where-

(a) an order is made in respect of a defendant who was a relevant offender immediately before the making of the order, and

(b) the defendant would (apart from this subsection) cease to be subject to the notification requirements of this Part while the order (as renewed from time to time) has effect,

the defendant remains subject to the notification requirements.

(4) Where an order is made in respect of a defendant who was not a relevant offender immediately before the making of the order-

(a) the order causes the defendant to become subject to the notification requirements of this Part from the making of the order until the order (as renewed from time to time) ceases to have effect, and

(b) this Part applies to the defendant, subject to the modification set out in subsection (5).

(5) The "relevant date" is the date of service of the order.

(6) Where a court makes a sexual offences prevention order in relation to a person already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.

(7) Section 106(3) applies for the purposes of this section and section 108.

s 108 SOPOs: variations, renewals and discharges

(1) A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual offences prevention order.

(2) The persons are-

(a) the defendant;

(b) the chief officer of police for the area in which the defendant resides;

(c) a chief officer of police who believes that the defendant is in, or is intending to come to, his police area;

(d) where the order was made on an application under section 104(5), the chief officer of police who made the application.

(3) An application under subsection (1) may be made-

(a) where the appropriate court is the Crown Court, in accordance with rules of court;

(b) in any other case, by complaint.

(4) Subject to subsections (5) and (6), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the sexual offences prevention order, that the court considers appropriate.

(5) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant (and any renewed or varied order may contain only such prohibitions as are necessary for this purpose).

(6) The court must not discharge an order before the end of 5 years beginning with the day on which the order was made, without the consent of the defendant and-

(a) where the application is made by a chief officer of police, that chief officer, or

(b) in any other case, the chief officer of police for the area in which the defendant resides.

(7) In this section "the appropriate court" means-

(a) where the Crown Court or the Court of Appeal made the sexual offences prevention order, the Crown Court;

(b) where a magistrates' court made the order, that court, a magistrates' court for the area in which the defendant resides or, where the application is made by a chief officer of police, any magistrates' court whose commission area includes any part of the chief officer's police area;

(c) where a youth court made the order, that court, a youth court for the area in which the defendant resides or, where the application is made by a chief officer of police, any youth court whose commission area includes any part of the chief officer's police area.

(8) This section applies to orders under-

(a) section 5A of the Sex Offenders Act 1997 (c. 51) (restraining orders),

(b) section 2 or 20 of the Crime and Disorder Act 1998 (c. 37) (sex offender orders made in England and Wales or Scotland), and

(c) Article 6 of the Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/2839 (N.I. 20)) (sex offender orders made in Northern Ireland),

as it applies to sexual offences prevention orders.

s 109 Interim SOPOs

(1) This section applies where an application under section 104(5) or 105(1) ("the main application") has not been determined.

(2) An application for an order under this section ("an interim sexual offences prevention order")-

(a) may be made by the complaint by which the main application is made, or

(b) if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.

(3) The court may, if it considers it just to do so, make an interim sexual offences prevention order, prohibiting the defendant from doing anything described in the order.

(4) Such an order-

(a) has effect only for a fixed period, specified in the order;

(b) ceases to have effect, if it has not already done so, on the determination of the main application.

(5) Section 107(3) to (5) apply to an interim sexual offences prevention order as if references to an order were references to such an order, and with the omission of "as renewed from time to time" in both places.

(6) The applicant or the defendant may by complaint apply to the court that made the interim sexual offences prevention order for the order to be varied, renewed or discharged.

(7) Subsection (6) applies to orders under-

(a) section 2A or 20(4)(a) of the Crime and Disorder Act 1998 (c. 37) (interim orders made in England and Wales or Scotland), and

(b) Article 6A of the Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/2839 (N.I. 20)) (interim orders made in Northern Ireland),

as it applies to interim sexual offences prevention orders.

s 111 Appeals in relation to SOPOs and interim SOPOs: Scotland

In Scotland-

(a) an interlocutor granting, a sexual offences prevention order on an application under section 104(5) or 105(1) or interim sexual offences prevention order or refusing, varying, renewing or discharging either such order is an appealable interlocutor;

(b) where an appeal is taken against an interlocutor so granting, varying or renewing such an order the order shall, without prejudice to any power of the court to vary or recall it, continue to have effect pending the disposal of the appeal.

(c) a sexual offences prevention order made in any other case and any order granting or refusing a variation, renewal or discharge of such a sexual offences prevention order are, for the purposes of appeal, to be regarded-

(i) in the case of solemn proceedings, as if they were orders of the kind referred to in section 106(1)(d) of the Criminal Procedure (Scotland) Act 1995 (c.46) (appeal against probation and community service orders);

(ii) in the case of summary proceedings, as if they were orders of the kind referred to in section 175(2)(c) of that Act (appeal against probation, community service and other orders); and

(d) where an appeal is taken by virtue of paragraph (c) above, the High Court of Justiciary may, in the appeal proceedings, suspend the order appealed against pending the disposal of the appeal.

s 112 Sections 104 and 106 to 109: Scotland

(1) Sections 104 and 106 to 109 apply to Scotland with the following modifications-

(aa) the references in subsection (2) and (3)(a) of section 104 to an offence listed in Schedule 3 or 5 shall be read as references to an offence listed at paragraphs 36 to 60 of Schedule 3;

(b) an application under subsection (5) of section 104 shall not be competent in respect of a person who is a qualifying offender by virtue only of a conviction or finding which relates to any offence listed at paragraphs 64 to 111 of Schedule 5;

(c) references to a chief officer of police and to his police area are to be read, respectively, as references to a chief constable and to the area of his police force;

(d) references to the defendant are to be read as references to the person in respect of whom the order is sought or has effect;

(e) an application for a sexual offences prevention order is made by summary application to any sheriff within

(ia) within whose sheriffdom the person in respect of whom the order is sought resides;

(ib) within whose sheriffdom that person is believed by the applicant to be;

(ic) to whose sheriffdom that person is believed by the applicant to be intending to come;

(ii) within whose sheriffdom lies any place where it is alleged that that person acted in a way mentioned in subsection (5)(b) of section 104,

(and, in relation to such an order, references to a court or the court shall be construed accordingly);

(ea) an application for an interim sexual offences prevention order-

(i) is made by way of the main application; or

(ii) if the main application has been made, is made, by application to a sheriff for the sheriffdom of the sheriff to whom the main application was made, by the person who made that application,

(and, in relation to such an order, references to a court or the court shall be construed accordingly),

(f) an application for the variation, renewal or discharge of a sexual offences prevention order which was made on an application under section 104(5) or 105(1) or an interim sexual offences prevention order is made by summary application to the sheriff who made the order or to a sheriff-

(i) within whose sheriffdom the person subject to the order resides;

(iia) within whose sheriffdom that person is believed by the applicant to be; or

(iib) to whose sheriffdom that person is believed by the applicant to be intending to come,

(and, in relation to an application made by virtue of this paragraph, references to a court or the court shall be construed accordingly).

(g) an application for the variation, renewal or discharge of a sexual offences prevention order which was made where subsection (2) or (3) of section 104 applies may be made only by the person in respect of whom the order has effect or the prosecutor;

(h) such an application is made-

(i) where the sexual offences prevention order sought to be varied, renewed or discharged was made by the High Court of Justiciary, to that court;

(ii) where that order was made by the sheriff, to the appropriate sheriff.

(1A) In subsection (1)(h)(ii), the "appropriate sheriff" is-

(a) in a case where the person in respect of whom the order has effect is, at the time of the application for its variation, renewal or discharge, resident in a sheriffdom other than the sheriffdom of the sheriff who made the order, any sheriff exercising criminal jurisdiction in the sheriffdom in which the person is resident;

(b) in any other case, any sheriff exercising criminal jurisdiction in the sheriff court district of the sheriff who made the order.

(2) A record of evidence shall be kept on any summary application made by virtue of subsection (1)(e) or (f) above.

(3) The clerk of the court by which, by virtue of that subsection, a sexual offences prevention order or interim sexual offences prevention order is made, varied, renewed or discharged shall cause a copy of, as the case may be-

(a) the order as so made, varied or renewed; or

(b) the interlocutor by which discharge is effected,

to be given to the person named in the order or sent to him by registered post or by the recorded delivery service (an acknowledgement or certificate of delivery of a copy so sent, issued by the Post Office, being sufficient evidence of the delivery of the copy on the day specified in the acknowledgement or certificate).

s 113 Offence: breach of SOPO or interim SOPO

(1) A person commits an offence if, without reasonable excuse, he does anything which he is prohibited from doing by-

(a) a sexual offences prevention order;

(b) an interim sexual offences prevention order;

(c) an order under section 5A of the Sex Offenders Act 1997 (c. 51) (restraining orders);

(d) an order under section 2, 2A or 20 of the Crime and Disorder Act 1998 (c. 37) (sex offender orders and interim orders made in England and Wales and in Scotland);

(e) an order under Article 6 or 6A of the Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/2839 (N.I. 20)) (sex offender orders and interim orders made in Northern Ireland).

(2) A person guilty of an offence under this section is liable-

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

(3) Where a person is convicted of an offence under this section, it is not open to the court by or before which he is convicted to make, in respect of the offence, an order for conditional discharge or, in Scotland, a probation order.

The Human Rights Act 1988

s 1 The Convention Rights.

(1) In this Act "the Convention rights" means the rights and fundamental freedoms set out in--

(a) Articles 2 to 12 and 14 of the Convention,

(b) Articles 1 to 3 of the First Protocol, and

(c) Article 1 of the Thirteenth Protocol

as read with Articles 16 to 18 of the Convention.

(2) Those Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see sections 14 and 15).

(3) The Articles are set out in Schedule 1.

(4) The Secretary of State may by order make such amendments to this Act as he considers appropriate to reflect the effect, in relation to the United Kingdom, of a protocol.

(5) In subsection (4) "protocol" means a protocol to the Convention--

(a) which the United Kingdom has ratified; or

(b) which the United Kingdom has signed with a view to ratification.

(6) No amendment may be made by an order under subsection (4) so as to come into force before the protocol concerned is in force in relation to the United Kingdom.

s 2 Interpretation of Convention rights.

(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any--

(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,

(b) opinion of the Commission given in a report adopted under Article 31 of the Convention,

(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or

(d) decision of the Committee of Ministers taken under Article 46 of the Convention,

whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

(2) Evidence of any judgment, decision, declaration or opinion of which account may have to be taken under this section is to be given in proceedings before any court or tribunal in such manner as may be provided by rules.

(3) In this section "rules" means rules of court or, in the case of proceedings before a tribunal, rules made for the purposes of this section--

(a) by the Lord Chancellor or the Secretary of State, in relation to any proceedings outside Scotland;

(b) by the Secretary of State, in relation to proceedings in Scotland; or

(c) by a Northern Ireland department, in relation to proceedings before a tribunal in Northern Ireland--

(i) which deals with transferred matters; and

(ii) for which no rules made under paragraph (a) are in force.

s 3 Interpretation of legislation.

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section--

(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

s 6 Acts of public authorities.

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if--

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section "public authority" includes--

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

(4) In subsection (3) "Parliament" does not include the House of Lords in its judicial capacity.

(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

(6) "An act" includes a failure to act but does not include a failure to--

(a) introduce in, or lay before, Parliament a proposal for legislation; or

(b) make any primary legislation or remedial order.

s 7 Proceedings.

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may--

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

(2) In subsection (1)(a) "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceedings.

(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.

(4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act.

(5) Proceedings under subsection (1)(a) must be brought before the end of--

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

(6) In subsection (1)(b) "legal proceedings" includes--

(a) proceedings brought by or at the instigation of a public authority; and

(b) an appeal against the decision of a court or tribunal.

(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.

(8) Nothing in this Act creates a criminal offence.

(9) In this section "rules" means --

(a) in relation to proceedings before a court or tribunal outside Scotland, rules made by the Lord Chancellor or the Secretary of State for the purposes of this section or rules of court,

(b) in relation to proceedings before a court or tribunal in Scotland, rules made by the Secretary of State for those purposes,

(c) in relation to proceedings before a tribunal in Northern Ireland--

(i) which deals with transferred matters; and

(ii) for which no rules made under paragraph (a) are in force,

rules made by a Northern Ireland department for those purposes,

and includes provision made by order under section 1 of the Courts and Legal Services Act 1990.

(10) In making rules, regard must be had to section 9.

(11) The Minister who has power to make rules in relation to a particular tribunal may, to the extent he considers it necessary to ensure that the tribunal can provide an appropriate remedy in relation to an act (or proposed act) of a public authority which is (or would be) unlawful as a result of section 6(1), by order add to--

(a) the relief or remedies which the tribunal may grant; or

(b) the grounds on which it may grant any of them.

(12) An order made under subsection (11) may contain such incidental, supplemental, consequential or transitional provision as the Minister making it considers appropriate.

(13) "The Minister" includes the Northern Ireland department concerned.

European Convention on Human Rights

Article 5 Right to liberty and security

1. Everyone has the right to liberty and security of a person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

Article 8: Right to privacy and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 11: freedom of association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Article 12: right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

III. Summary of propositions

Domestic law

1 That the Pursuer requires to demonstrate, by reference to evidence, that the Order craved is necessary, and not merely desirable: R v Halloren (Times Law Reports 11^th February 2004).

2 The order must be tailored to the purported risk, and must not be oppressive or disproportionate: R v Collard [2004] EWCA Crim 1664, paragraph 24.

3 The court requires to consider what other measures are presently in place in relation to the Defender: R v Ali Badiei [2005] EWCA Crim 970, paragraph 13.

4 The Pursuer requires to show why sentencing for sexual offences per se will not meet the purported need: R v Carl Leslie [2006] EWCA Crim 847, paragraph 19.

5 In considering whether the granting of a SOPO is necessary, any behaviour founded upon requires to be demonstrated to have been recent: R v G [2006] EWCA Crim 1994, paragraph 25.

6 Specific consideration must be given to any potential adverse impact upon employment: R v Neil B [2005] EWCA Crim 2747, paragraph 8.

European Convention on Human Rights

General

7 In the generality, an act of a public authority which is prima facie incompatible with the Convention rights of an individual will be justified if a) it is in pursuit of a legitimate aim; and b) it bears a relationship of reasonable proportionality to that legitimate aim: Handyside v UK (1976) 1 EHRR 737.

8 That the foregoing is not merely concerned with the compatibility of any legislative provision, but also its application in each case.

9 The terms of sections 104-113 of the Sexual Offences Act 2003 require to be read down in a manner compatible with the Defender's Convention rights: Human Rights Act 1998, section 3.

Article 8(1)

10 "Family life" is defined widely under the Strasbourg jurisprudence: Niemetz v Germany (1992) 16 EHRR 97, paragraphs 29-31.

11 Sexual relationships fall under the definition of "family life": Bruggeman v Germany (1978) 10 DR 100, paragraph 55.

12 Article 8 rights extend to the workplace: Niemetz, supra, paragraph 29; Halford v UK (1997) 24 EHRR 523, paragraph 44.

Article 8(2)

13 Infringement of the right conferred by Article 8(1) can only be justified where same is necessary in a democratic society.

14 The terms of any SOPO craved require to be specifically tailored so as not to unduly interfere with the Defender's home, family, social or work life except where necessary to deal with a pressing social need: Handyside, supra, paragraph 48.

15 It is necessary to construe section 105 of the 2003 Act strictly, and any order sought thereunder must meet only and precisely the harm founded upon by the Pursuer: B v Chief Constable of Avon and Somerset [2001] 1 WLR 340, paragraph 34.

Article 11

Article 11(1)

16 Freedom of association is a general capacity for citizens to join without interference by the State an association in order to attain various ends: Association X v Sweden (1973) 9 DR 1, paragraph 52.

17 The association in question requires to be a defined organisation and not merely a loose social coming together of individuals: McFeeley v UK (1980) 20 DR 44, paragraph 114 -115.

18 The right only applies to private associations and does not extend to the State or State-operated bodies: Association X, supra, paragraph 63.

Article 11(2)

19 Freedom of association is not an absolute right. Interference with the right is permissible where it is proportionate to do so in pursuit of a legitimate aim: Gorzelik v Poland, unreported ECtHR 20^th December 2001, paragraph 59.

20 The extent to which interference in terms of Article 11(2) may be permitted with the right conferred by Article 11(1) is subject to strict interpretation: Gorzelik, supra, paragraph 58.

Article 12

21 Article 12 of ECHR protects the formation of a legally binding association between a man and a woman: Hamer v UK (1979) 24 DR 5.

22 It is fundamental that domestic law should not destroy the very right of marriage: Cossey v UK (1990) 13 EHRR 622.

23 Even deprivation of liberty does not per se entitle the domestic law to remove the right to marry: Draper v UK (1981) 24 DR 72 at 81.

IV. Discussion

Domestic law

The statutory test

1 It is submitted that the test set out in section 105 of the 2003 Act falls into 2 stages:

(i) That there has been a conviction for a "sexual offence", which may be any offence which the sentencing court deems to have a significant sexual aspect to its commission in terms of paragraph 60 of Schedule 3 to the 2003 Act; and

(ii) There is subsequent behaviour which demonstrates reasonable cause to suspect the risk of serious sexual harm to the public, thereby making the order necessary.

2 The granting of such an order is at the discretion of the Court.

3 A SOPO is potentially a draconian order, which has a minimum term of 5 years.

4 Breach of a SOPO may result in a custodial sentence of up to 5 years.

5 There is no automatic power of the Court to review the terms of a SOPO. Any review must be invoked by a party to the proceedings by minute of variation. Where the party seeking variation is the Defender, this would require him to seek funding of such a process, whether privately or by Legal Aid.

Behaviour

6 It is submitted that the crux of the test for the granting of a SOPO in terms of section 105 o9f the 2003 Act is the behaviour founded upon which is post conviction.

7 There must be demonstrated to have been behaviour post-conviction which demonstrates a risk of serious sexual harm and also demonstrates that sentencing alone for the conviction is insufficient.

8 It is submitted that in the present case, where the Pursuer founds upon 2 convictions, the behaviour which may found the application of the test is that which post-dates the later conviction.

9 The content of the note book forming Pursuer's production 12 was founded upon by the Crown in the sentencing relative to the later conviction, and the sentencing sheriff clearly had regard to the same when imposing sentence.

10 It is accordingly submitted that the content of Production 12 cannot of itself be regarded as post-conviction behaviour on which an application for a SOPO may be founded.

11 Esto the Pursuer is entitled to rely upon the later conviction as post-conviction behaviour for the purposes of section 105, the behaviour must nevertheless be recent.

12 In the present case, the later conviction relates to an incident which occurred in February 2006. The behaviour is accordingly not recent and does not per se demonstrate that the granting of a SOPO is necessary.

13 It is submitted that, in terms of the wording of the statutory test, a conviction together with a risk assessment do of themselves not permit the Court to grant a SOPO.

Serious sexual harm

14 The harm may be physical or psychological.

15 It is submitted that as a sine qua non, there requires to be an evidential basis to suggest a risk of material harm. It is submitted that there must accordingly be evidence that serious sexual harm has in fact occurred due to the behaviour of the Defender previously.

16 It is submitted that "serious" psychological harm can only mean a diagnosable psychological condition. It would be insufficient for the purposes of the statutory test that a complainer suffered fear or alarm. It is submitted that Parliament clearly intended that an order such as a SOPO should only be granted where there were such serious circumstances.

17 In the present case, whilst it is accepted that the offences in question undoubtedly caused the complainers fear and alarm, neither suffered any physical harm. Further, there was no evidence of any psychological condition suffered by either complainer, nor was evidence led by the Pursuer of any such diagnosis.

18 Accordingly, the antecedent convictions demonstrate that there has been some degree of psychological sequelae on the part of the complainers, but that these do not amount to significant psychological harm.

19 With regard to the subsequent behaviour founded upon by the Pursuer, the only issue which may suggest sexual harm pertains to the April 2006 "taxi incident". There was no evidence led from the female involved in that incident and no evidence was adduced as to the effect, if any, which said incident may have had upon her beyond the observation by an eye witness that she appeared to be frightened within the taxi.

Necessity

20 It is submitted that the Pursuer must fail unless it can be demonstrated by evidence that post-conviction behaviour makes the granting of a SOPO necessary.

21 Reference is made to the foregoing paragraphs relative to the nature of the post-conviction behaviour founded upon. It is submitted that, for the foregoing reasons, same does not entitle the Court to hold that the granting of such an order is necessary.

22 Further, and in any event, before granting an order, the Court must be satisfied that the sentencing of the Defender alone would not be sufficient.

23 In the present case, the Defender is presently subject to a probation order. There are additional conditions of probation which include a prohibition on the Defender being in the company of a lone female except with her expressed consent. Further, the Defender cannot obtain employment whether paid or otherwise without the consent of his supervising officer. The probation order is of a three year duration from 20^th December 2006.

24 It is submitted that the probation order amounts to sufficient protection for the protection of the public. Further, it is submitted that the additional conditions of the probation order clearly demonstrate that the sentencing sheriff had the protection of the public in mind when imposing the order.

25 The compliance of the Defender with his bail conditions prior to the imposition of the probation, together with his compliance with the probation order since its imposition, demonstrate that there is no current operative behaviour on the part of the Defender which necessitates the granting of a SOPO.

26 Further, the overlap of the additional conditions of probation and the SOPO craved demonstrate that there can be no need for the SOPO whilst the probation order remains in force.

27 The evidence of Dr Switzer was to such that the granting of the order may have some extra effect of underlining to the Defender that his previous behaviour was wrong. However, it is submitted that Dr Switzer's evidence is not of assistance to the present issue. Dr Switzer has not assessed the Defender since the probation order was imposed. The prohibition within the probation order is the very one which Dr Switzer in any event considered useful at least to a limited degree. It is therefore submitted that there is no material benefit to be attained in the granting of the SOPO craved.

28 The current probation order is in the circumstances, superior to the terms of the SOPO craved. It imposes on the Defender positive obligations, principally obliging him to take part to a satisfactory standard in a sex offender programme. Accordingly, it is submitted that this further demonstrates the SOPO to be unnecessary.

29 A SOPO should not be granted merely because it is desirable or useful to do so.

30 The evidence of the DS Young was to the effect that the SOPO was necessary over and above the probation order in the event of breach of the SOPO, since the powers of arrest and prosecution for the latter were swifter than the former. It is however submitted that this line of evidence falls to be disregarded since there is no evidence that any grounds exist as a matter of fact to demonstrate a risk that the Defender has or is likely to breach the terms of the probation order.

31 Further, the procedures which may be used in the event of breach of a SOPO are nothing to the point with regard to the test of necessity. The granting of the SOPO is based on the behaviour of the Defender and the reasonable anticipation of serious sexual harm.

32 Specific consideration must be given to the likely impact the SOPO may have on employment. Whereas the Pursuer has deleted the specific reference to the workplace or place of voluntary work or self employment, the issue may nevertheless still arise indirectly. The Defender is currently unemployed. There is evidence that he has applied for various jobs in the locality. The terms of the SOPO craved would be active even during a job application.

33 The current probation order, by way of comparison, permits the Defender to seek or obtain employment or similar, with the consent of his supervising officer. There is no mechanism whereby such consent may be obtained in the context of the SOPO. The only remedy available to the Defender would be to incur the expense of seeking a variation of the order. If that were required for each job application, the process would be inflexible and impractical.

34 It is submitted that this issue further demonstrates that the SOPO craved is unnecessary, and that the terms of the probation order are not only adequate to address the Defender's perceived risk, but are superior to the terms of the SOPO craved.

35 The terms of the order craved is contradictory to the psychiatric evidence relied upon by the Pursuer. It was the position of Dr Switzer that only a "black and white" prohibition would be effective in respect of the Defender. The order craved instead inserts many shades of grey by ostensibly permitting a preliminary approach by the Defender to a lone female.

Oppression

36 It is submitted that any SOPO sought by the Pursuer must be clear and precise in its terms so as to give the Defender fair notice of the prohibition it carries.

37 Further, the order must be tailored in terms of width and duration to the harm founded upon. If that does not occur, the order sought would be oppressive.

38 The duration of the order must be shown to be necessary. The amended order craved is for a period of 10 years. It is submitted that no basis has been demonstrated as to why an order of 10 years is necessary. The figure selected is arbitrary and so is oppressive.

39 The duration of a SOPO is correlated to the width of the prohibition sought.

40 The present case involves a wide prohibition for a long duration. It is submitted that evidence has not been led to demonstrate why this combination is necessary.

41 It is submitted that a "black and white" prohibition would be manifestly oppressive, and separatim, patently would infringe the Defender's Convention Rights in a disproportionate manner (see below).

42 The order, if granted, would present a clear difficulty in enforcement. It is clear from the evidence of DS Young that the Pursuer and his officers expect to act quickly in the event of a perceived breach of the order by the Defender.

43 As however highlighted in cross examination of DS Young, it is foreseeable that a police officer may require to investigate the circumstances where the Defender was in the company of an adult female. That may be perfectly legitimate in terms of the order craved, either because it was a preliminary approach, or that the woman consented. In either event, a police officer would require to conduct enquiries. It was the evidence of DS Young that such enquiries would involve either the Defender requiring to be detained under section 14 of the Criminal Procedure (Scotland) Act 1995, or to be arrested and appear in court on the next lawful day. In the latter event it was suggested in the evidence that the Defender would require to persuade the Court after trial of his innocence. In that event, it is by no means certain that he would be entitled to bail meantime.

44 It is submitted that the foregoing issues are manifestly oppressive. The SOPO contains no mechanism other than one which deprives a potentially innocent man of his liberty, for the investigation as to whether the man was indeed innocent.

45 The above issue of arrest or detention, separatim, would as a consequence infringe the Defender's Convention Right under Article 5 of ECHR.

ECHR

General

46 The Pursuer is a "public authority" for the purposes of section 6 of HRA.

47 It is accordingly unlawful for the Pursuer to act in a manner which is incompatible with those rights under ECHR which are imported into HRA by virtue of section 1 thereof.

48 Articles 5, 8, 11, and 12 of ECHR are inter alia, so imported into HRA.

49 The domestic law enjoys a certain margin of appreciation relative to the implementation of Articles 8, 11 and 12. However, the right to liberty in terms of Article 5 is a fundamental freedom and so has no margin of appreciation.

50 The terms of the 2003 Act require to be read down in a manner compatible with the rights afforded by ECHR.

51 It is submitted that the terms of section 105 of the 2003 Act are capable of being read down in a manner compatible with the Convention Rights of the Defender, and so the terms of the legislation itself are not per se unlawful.

52 Section 105 of the 2003 Act does not of itself seek to proscribe various activities. The issue of what may be sought within a SOPO is thus a question for the draftsman and the Court. The determination of such an exercise does bring into operation the terms of section 6(1).

53 The "act" of the Pursuer in the present case which renders operable the provisions of section 6 of HRA is the bringing and maintaining of the present action against the Defender.

54 The foregoing issues apply also the Court. The granting of a SOPO which is incompatible with the Convention rights of the Defender would be an "act" which would render operative the provisions of section 6(1) of HRA. The Court, for this purpose, is also a "public authority".

55 A provision or act which appears prima facie to be incompatible with Convention Rights may nevertheless be justified by the public authority if it is:

(a) In pursuit of a legitimate aim; and

(b) Bears a relationship of reasonable proportionality to that legitimate aim.

56 In the present case, it is submitted that the SOPO craved in the present case can only be regarded as being in pursuit of a legitimate aim if it can be demonstrated on the evidence that the test provided for in section 105 of the 2003 Act has been met by the Pursuer.

57 In the present case, for the reasons set out above, it is submitted that the Pursuer has failed to make out the apposite statutory test. Where that is so, the order craved is a fortiori unlawful in terms of section 6(1) of the HRA.

58 Esto, the Pursuer has made out the statutory test, which is denied, it is submitted that the order craved is disproportionate in all the circumstances.

59 It is submitted that the following issues, whether separately or cumulatively, demonstrate that the Defender's Convention Rights would be infringed by the granting of the SOPO craved, and further, those infringements are disproportionate.

Article 8

60 The definition of "family life" has been afforded a wide meaning in the Strasbourg Jurisprudence. The approach of the Strasbourg Court has been to evaluate what may be included within the concept on a case by case basis, rather than to state an exhaustive definition.

61 It is settled law that sexual or romantic relationships fall within the definition of "family life" for the purposes of Article 8(1).

62 In the present case the order craved seeks, in effect, to limit the Defender from entering into romantic or sexual relationships with adult women.

63 Further, it has been accepted within the Stasbourg Jurisprudence that the scope of the right under Article 8(1) extends to the workplace. Accordingly, relations with work colleagues would fall to be included under Article 8(1).

64 It is submitted, a fortiori, that "family life" may also include relations with sporting or club colleagues.

65 The terms of the SOPO craved are accordingly a plain infringement of the right enjoyed by the Defender in terms of Article 8(1).

66 Interference with the right under Article 8(1) is justified only where permitted under Article 8(2), namely where it is necessary in a democratic society.

67 A SOPO must be demonstrated, in order to be proportionate in terms of Article 8 of ECHR, to be designed to meet a pressing social need, but must be bespoke to be no more strictly necessary to meet the social need in question.

68 In the present case, it is submitted that the duration of the order craved, together with its wide scope, renders it disproportionate, and so unlawful under section 6 of HRA relative to the right conferred on the Defender by Article 8 of ECHR.

Article 12

69 The right of the Defender to marry per se is one which is strictly protected under Article 12 of ECHR.

70 A fortiori of the Defender's submissions in terms of Article 8, the SOPO craved plainly effectively infringes the Defender's right to form a legally binding association between a man and a woman.

Article 11

71 The right enjoyed under Article 11(1) relates to the general capacity for citizens to engage in private associations without interference by the state.

72 Any interference with the Article 11(1) right requires to be proportionate in terms of Article 11(2).

73 The scope of interference in terms of Article 11(2) requires to be construed strictly.

74 Whilst the evidence suggests that the Defender is not currently a member of the Perthshire Eagles Rugby Club, he cannot in any event continue to do so by virtue of the operation of the interim SOPO. The SOPO craved makes no specific reference to a prohibition on the Defender attending sporting activities. Nevertheless, it is reasonably foreseeable that the order would so prevent. The evidence in the present case was to the effect that there was a social side to rugby which brought adult females into participation with male club members.

75 The definition of "association" under Article 11(1) would extend to attendance at educational classes.

76 Further, the SOPO craved would prevent the Defender from attendance at the Gaelic class. The Defender is presently prevented from attending the same by virtue of the terms of the interim SOPO. He would effectively be prevented from attending such a class where adult females also attended were the SOPO craved to be granted.

77 There is no evidence to suggest that any attendee of the Gaelic Class attended by the Defender, or any member of staff thereat, was subjected by the Defender to sexual harm of any degree.

78Whilst it may be argued that the SOPO craved is proportionate in respect that no specific reference is made to sporting or education activities, it is submitted that the generality of the craved prohibition nevertheless extends to these.

79 It is submitted that no risk has been identified in the evidence relative to such activities. The prohibition craved is accordingly disproportionate.

Edinburgh; 1^st April 2007

On 3^rd April 2007 counsel for the Defender expanded on the foregoing submissions. He referred to the statutory test set for the granting of the order set out in section 105. Section 106(3) referred to serious physical or psychological harm. This required more than fear and alarm and had to have been caused by the person since the initial conviction. Section 107(2) did not deal with proportionality but rather necessity. Proportionality came from the case law and the European Convention of Human Rights. The 2003 Act required to be read and interpreted in light of the convention. The court firstly had to consider whether the order was permitted in terms of the legislation. If it did, then the court had to consider whether it was proportionate to grant the order sought.

Counsel stressed that there had to be evidence to enable the court to conclude that the order was necessary to protect the public from serious sexual harm. If there was no evidence that the Defender had previously caused serious sexual harm. If there was no such evidence, the court could not infer that the Defender would so act in the future. I was referred to R v Rampley 2006 EWCA Crim 2203. A risk assessment which indicated the Defender constituted a potential danger was insufficient. The harm must be caused by a sexual act or conduct.

I was referred to R v D 2006 1WLR 1088. There had been no averments of recent incidents. The order sought was draconian. The English authorities had to be considered with care.

In the present case, the two convictions have a significant sexual aspect but they were towards the lower scale of offending. I was referred to page 9 paragraph 23 of Sheriff Fletcher's report in the appeal against sentence imposed in respect of the second conviction. No serious harm was caused, the conduct was not per se serious, there had been no long term serious harm. Counsel referred me to R v Collard and the issue of oppression. Oppression meant greater than is necessary. The grant of the order might result in collateral issues. I was referred to R v Halloren 2004 TLR 11^th February 2004. There had been no exacerbation of the Defender's behaviour since April 2006. The behaviour since the second offence was less serious than the behaviour involved in the offences.

Turning to the evidence, counsel submitted that Detective Constable Fitzgerald's risk assessment was of little weight. He had limited experience. Referring to the Pursuer's production 5, the only evidence of the incident of 2^nd April 2005 came from the document. Part of the entry had been blanked out including the category code for the information. The information was incomplete.

The Defender had complied with both bail and probation orders. Referring to paragraph 3.6 in the Pursuer's submission and the incidents following the qualifying conviction he submitted that incidents in July 2005 simply amounted to odd behaviour. The actions during the 2005-6 rugby season was not of the strongest character. There was no evidence from any of the females concerned notwithstanding that they were traceable. The evidence consisted of unreliable observations from a distance. The taxi incident did not involve any conversation or interaction. Fear alone was insufficient. The Defender's actions did not demonstrate serious sexual harm.

The probation order had changed the picture. The terms of the order overlapped with the order now sought. The Pursuer required to show that the probation order was unsatisfactory or insufficient or exclude it. That order was being complied with. Detective Sergeant Young's evidence was contradictory. Speed of action was not an important factor. The probation order had an aim to protect the public. There were no grounds for the present order to be granted whilst the Defender was subject to probation. The order might be useful but it was not necessary.

Turning to the terms of the order sought, I was referred to B v Chief Constable of Avon and Somerset Police 2001 1WLR 340. The rider rendered the order sought incomprehensible. The crave was contrary to the evidence. The court could not redraft the order, it could restrict the order or delete parts of the order sought. There was no basis for an order exceeding five years.

Turning to the European Convention of Human Rights, I was referred to the decision in Handyside v UK 1976 1EHRR 737 and article 8 of the convention. Even if the test was satisfied in terms of the statute, the order sought had to be proportionate. The entire order had to be looked at including its duration and width. The order was disproportionate when compared to the harm from which it sought to protect persons. Article 12 arose indirectly. Article 11 also was relevant. Article 5 also arose if the Defender was arrested.