For the appellant: Party

For the Crown: Scullion, AD; Crown Agent

3 August 2011

[1] On 30 August 2010 at Airdrie Sheriff Court the appellant was found guilty of a contravention of section 113(1)(a) of the Sexual Offences Act 2003 ("the 2003 Act") in the following terms:

"You being subject to an interim Sexual Offences Prevention Order granted at Airdrie Sheriff Court on 14 May 2009 in terms of the Sexual Offences Act 2003 prohibiting you from leaving the house at 8 Paddock Street, Coatbridge between the hours of 7pm and 7am did on 6 December 2009 at Paddock Street, Coatbridge without reasonable excuse breach the terms of said Order in that you did leave said address as 2035 hours and enter onto the public footpath, Paddock Street, Coatbridge."

He was sentenced to three years imprisonment.

[2] The circumstances in which the appellant breached the interim order were as follows. At some time after 7 pm in the evening of 6 December 2009 police officers attended at his home address. They reminded him that he was subject to the order and warned him not to breach its terms. In response the appellant indicated to them that he intended to breach the order and deliberately left the house. He was immediately arrested.

[3] The background to the making of the order was as follows. On 6 May 2009 the Chief Constable of Strathclyde Police made a summary application to the sheriff at Airdrie craving the court to make a Sexual Offences Prevention Order in respect of the appellant under sections 105 and 112 of the 2003 Act together with an interim order under section 109. On 7 May 2009 the sheriff at Airdrie granted warrant to cite the appellant by serving on him a copy of the application and the warrant. At this time the appellant was a prisoner in HM Prison, Barlinnie. On 11 May sheriff officers served copies of the application and warrant to cite the appellant on a member of the administrative staff at the prison with a direction that the documents should be given to the appellant. The warrant to cite assigned 14 May 2009 as a diet for a hearing on the application for an interim order.

[4] On 14 May 2009 the appellant was not present at the hearing nor was he represented. Sheriff A Vannet made an interim order in terms of section 109 of the 2003 Act. The sheriff signed the interlocutor granting the order. On the same date a copy of the order certified by the sheriff clerk at Airdrie was served on the appellant by recorded delivery post. The sheriff clerk did not retain a copy of the document served on the appellant. The relevant certification in relation to the recorded delivery service of the order on the appellant was produced. The member of staff at the office of the sheriff clerk at Airdrie who dealt with service of the copy of the order on the appellant does not specifically recall dealing with the appellant's case but in an affidavit dated 24 May 2011 stated that her usual practice was to serve a certified copy of the signed interlocutor.

[5] Separately, on 18 May 2009 a certified copy of the signed interlocutor granting the interim order dated 14 May was personally served on the appellant on behalf of the Chief Constable.

[6] The next hearing on the chief constable's application was on 11 June 2009 when the appellant was legally represented. The case was sisted for an application for legal aid and the sheriff continued the interim order in force. On 4 November 2009 the solicitors acting for the appellant intimated to the sheriff clerk at Airdrie that they sought leave to withdraw from acting.

[7] On 24 November 2009, at a peremptory diet sought by the Chief Constable, the sheriff appointed the Chief Constable's solicitor to intimate to the appellant by recorded delivery letter the interlocutor of 24 November 2009 together with a Form G10 notice in terms of Rule 24(2)(3) of the Ordinary Cause Rules. The notice intimated that the appellant should appear personally or be legally represented at an assigned diet on 10 December 2009, under certification that if he failed to appear personally or be legally represented the cause might proceed in his absence. On 2 December 2009 copies of the interlocutor and Form G10 notice were served on the appellant by recorded delivery post. On 10 December 2009 the appellant failed to appear and was not represented. The sheriff granted decree and made a Sexual Offences Prevention Order in terms of section 105 and 112 of the 2003 Act.

[8] In due course the appellant was indicted on a charge of contravening section 113(1)(a) of the 2003 Act in respect of his behaviour on 6 December 2009. At a first diet on 24 August 2010 and at the trial diet on 30 August 2010 the appellant accepted that he had been served with a copy of the order.

[9] At the first diet on 24 August 2010 the appellant raised a preliminary issue challenging the validity of the interim order. He argued that the service copy interlocutor served on him was unsigned and accordingly that the order was invalid. Before the sheriff the Crown accepted that the copy of the sheriff's interlocutor served on the appellant was unsigned. Sheriff Collins concluded that there was nothing in section 112(3) of the 2003 Act which required that the service copy of the order should be signed. In her report she noted that as the appellant had accepted that he had received a copy of the interlocutor, he could not claim that at the time of the alleged offence he was ignorant of its existence. She was satisfied that the requirements of the Act had been met in relation to service of the order. The appellant did not seek leave to appeal her decision at that stage and she did not consider that it was a case in which she herself should grant leave to appeal ex proprio motu.

[10] The trial proceeded before Sheriff Dickson.

[11] After conviction the appellant lodged a note of appeal containing a number of grounds set out in bullet points. Leave to appeal was granted in respect of the fourth and fifth bullet points which were in the following terms:

· "Prior to trial of second indictment, the sherriff [sic] of the first diet had made the decision that the charge of the indictment, should proceed to trial as by the Notifications Act [the 2003 Act], an interlocutor has no mention of needing a sheriff's signature to verify such order has been granted. In my view, the sheriff of the court should have given myself leave to the appeal court prior to the trial diet and for the appeal court to decide by verification of law.

· Before the commencing of the trial, the trial sheriff had accepted the decision of the sheriff of the first diet on the decision of the validity of such order."

[12] Section 109 of the 2003 Act provides for the making of an interim sexual offences prevention order in a case where the main application has not been determined.

[13] Section 112 makes provision for the application of sections 104 and 106-109 to Scotland. Subsection (3) provides the procedure by which the clerk of court shall notify the person named in order:

"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)."

[14] Before us the appellant, who appeared on his own behalf, argued that there had been a miscarriage of justice. He submitted that Sheriff Collins was wrong in holding that the order served on him complied with section 112(3) of the 2003 Act. He further submitted that the sheriff who presided at the trial had accepted the decision of Sheriff Collins and that the trial had proceeded on the basis of an invalid order. He invited us to quash his conviction.

[15] The Advocate depute submitted that there was a valid order signed by the sheriff. It was conceded that the copy of the order served on the appellant was unsigned. The position of the appellant appeared to be that the proceedings became invalid because of the absence of a signature on the service copy. The legislation did not stipulate that the service copy of the order required to be signed. It was not an essential requirement for notification that the service copy was signed. The purpose of the notification requirement was to ensure that the individual subject to the restrictions contained in the order was aware of the terms of the order and the restrictions imposed by the order and had a record of those restrictions. The appellant had received such notification. In addition, a signed copy of the order had been served on the appellant by the Chief Constable of Strathclyde Police. Receipt of those documents enabled the appellant to seek representation in advance of the hearing on 11 June 2009. The appellant was fully aware of the terms of the order dated 14 May 2009 and was legally represented between June and November 2009, during which period the order was in force. The appellant was not prejudiced by the absence of a signature on the copy order served on him by the sheriff clerk's office. The appellant had failed to seek leave to appeal from Sheriff Collins. She had quite properly not granted leave to appeal ex proprio motu.

[16] In our opinion the purpose of the requirements of notification set out in section 112(3) is to draw to the attention of the person subject to the order its existence and significance. For the order to be valid it requires to be signed. The interlocutor of 14 May was signed by the sheriff. There was therefore a valid order. The service copy is in a different position and is informatory only. The certification indicated that service had been properly carried out. The appellant accepted that he was fully aware of the terms of the order. In these circumstances we are not persuaded that there was any invalidity in the process of the making of the interim order.

[17] The Advocate depute referred us to the cases of Campbell's Trustees v O'Neil 1911 SC 188 and Muir v The National Bank Limited 1943 Sh Ct Reports 51. The circumstances in Campbell were so different that we did not derive any assistance from a consideration of that case. In Muir the defenders had obtained decree in absence against the pursuer and charged the pursuer thereon. She raised a petition for interdict against further diligence and for reparation. The petitioner contended that the defenders' initial writ had been defective and that the decree in absence was invalid. One of her grounds was that Rule 3 of the first schedule annexed to the Sheriff Courts (Scotland) Act 1907 had not been complied with. In so far as relevant for present purposes that rule provided:

"The writ shall be signed by the pursuer or complainer or by his agent..."

The service copy of the writ had not been signed. The sheriff was satisfied that the absence of the signature was not an omission so vital as to render the whole proceedings invalid. He concluded that the pursuer had been made well aware of the nature of the claim against her in the writ and had suffered no prejudice. We consider that the approach adopted by the sheriff in Muir was correct.

[18] Even if there had been some failure in the process of notification, it is clear that the appellant at the time when he breached the order was in a position where he was fully aware of its terms. He had received the copy sent by the sheriff clerk. The Chief Constable had served a copy on him and he had been warned by the police officers not to breach the order. In these circumstances his conviction could not be a miscarriage of justice.

[19] For the reasons given above we refuse the appeal.