Tayside Police v. Basterfield [2006] ScotSC 45 (03 September 2007)

Tayside Police v. Basterfield [2006] ScotSC 45 (03 September 2007)

The statutory test for granting a SOPO under section 105 of the Sexual Offences Act 2003 requires evidence of recent post-conviction behaviour demonstrating a risk of serious sexual harm and that sentencing alone is insufficient. In this case, the evidence does not establish recent or serious harm, and the probation order already in place provides sufficient protection. The SOPO sought is disproportionate in scope and duration, and would infringe the Defender's rights under Articles 5, 8, 11, and 12 ECHR. The order is therefore unnecessary and oppressive.

Parties
Applicant: Pursuer; Respondent: Defender
Jurisdiction
Scotland
Judgment Date
03 September 2007
Procedural Posture
Civil / Judgment
Outcome
application refused
Legal Topics
Sexual Offences Prevention Order (sopo), Necessity and Proportionality, European Convention on Human Rights (echr), Human Rights Act 1998, Article 5 ECHR, Article 8 ECHR, Article 11 ECHR, Article 12 ECHR
Criminal Law Human Rights Law Sexual Offences Prevention Order (sopo) Necessity and Proportionality European Convention on Human Rights (echr) Human Rights Act 1998 Article 5 ECHR Article 8 ECHR +2 more

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Parties

Pursuer

Applicant

Defender

Respondent

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether the statutory test for granting a SOPO under section 105 of the Sexual Offences Act 2003 is met
  2. 2 Whether the SOPO sought is necessary and proportionate in light of the Defender's Convention rights under Articles 5, 8, 11, and 12 ECHR
  3. 3 Whether the evidence demonstrates a risk of serious sexual harm justifying the SOPO

Ratio Decidendi

The statutory test for granting a SOPO under section 105 of the Sexual Offences Act 2003 requires evidence of recent post-conviction behaviour demonstrating a risk of serious sexual harm and that sentencing alone is insufficient. In this case, the evidence does not establish recent or serious harm, and the probation order already in place provides sufficient protection. The SOPO sought is disproportionate in scope and duration, and would infringe the Defender's rights under Articles 5, 8, 11, and 12 ECHR. The order is therefore unnecessary and oppressive.

Court Disposition

application refused