BILL OF ADVOCATION BY MACKENZIE FRED ANDREW HORNER AGAINST HMA [2024] ScotHC HCJAC_18 (02 May 2024)

BILL OF ADVOCATION BY MACKENZIE FRED ANDREW HORNER AGAINST HMA [2024] ScotHC HCJAC_18 (02 May 2024)

The Sheriff had no power to make an interim notification order; the certification made on 7 November 2023 was final and could not be undone by subsequent order; the correct procedure would have been to refrain from certification until the appropriateness of notification requirements was determined. The Bill is passed to set aside the certification made on 7 November 2023.

Citation
[2024] ScotHC HCJAC_18
Parties
Complainer: Mackenzie Fred Andrew Horner; Respondent: His Majesty's Advocate
Jurisdiction
Scotland
Judgment Date
02 May 2024
Procedural Posture
Bill of Advocation / Appeal From Sheriff Court Order Regarding Notification Requirements Under Sexual Offences Act 2003
Outcome
Bill of Advocation passed to the extent of setting aside the certification made by the Sheriff on 7 November 2023.
Legal Topics
Notification Requirements, Indecent Images of Children, Procedural Irregularity, Certification Under Sexual Offences Act 2003
Criminal Law Sexual Offences Notification Requirements Indecent Images of Children Procedural Irregularity Certification Under Sexual Offences Act 2003

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Parties

Mackenzie Fred Andrew Horner

Complainer

His Majesty's Advocate

Respondent

Procedural Posture

Bill of Advocation / Appeal From Sheriff Court Order Regarding Notification Requirements Under Sexual Offences Act 2003

Legal Issues

  1. 1 Whether the Sheriff had power to make an interim order subjecting the complainer to notification requirements under the Sexual Offences Act 2003
  2. 2 Whether the certification made on 7 November 2023 could be set aside by the Sheriff on 5 December 2023
  3. 3 Proper procedure for determining notification requirements under paragraph 45 of Schedule 3 to the 2003 Act

Ratio Decidendi

The Sheriff had no power to make an interim notification order; the certification made on 7 November 2023 was final and could not be undone by subsequent order; the correct procedure would have been to refrain from certification until the appropriateness of notification requirements was determined. The Bill is passed to set aside the certification made on 7 November 2023.

Court Disposition

Bill of Advocation passed to the extent of setting aside the certification made by the Sheriff on 7 November 2023.

Orders

  • Certification made by the Sheriff on 7 November 2023 that the complainer had been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003 is set aside.