SIR STEPHEN HOUSE, QPM CHIEF CONSTABLE AGAINST RMcK [2016] ScotSC 9 (05 February 2016)

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SHERIFFDOM OF

GLASGOW AND STRATHKELVIN AT GLASGOW [2016] SC GLA 9 B2808/15 JUDGMENT OF SHERIFF PRINCIPAL C A L SCOTT, QC In the cause SIR STEPHEN HOUSE, QPM CHIEF CONSTABLE Applicant ; Against R McK Respondent : Glasgow, 4 February 2016 The sheriff principal, having resumed consideration of the appeal, on the motion of the applicant, allows each crave in the summary application to be amended by deletion of the words “accidental or inadvertent contact” and by substitution therefor of the words “unavoidable contact or contact incidental to daily life”; thereafter, allows the appeal; recalls the sheriff’s interlocutor dated 16 October 2015; in lieu thereof, makes an interim risk of sexual harm order in terms of section 5 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, (i) prohibiting the respondent from approaching, speaking to or communicating in any way with any female under the age of 16 years except for unavoidable contact or contact incidental to daily life; (ii) requiring the respondent, within 48 hours of intimation of this order upon him, to provide to the officer in charge of the applicant’s Offender Management Unit, Cathcart Police Office, details of any electronic devices he owns, possesses or uses which are capable of accessing the internet or otherwise capable of sending electronic messages in whatever form; (iii) requiring the respondent to

make such devices available for inspection by any police officer of the applicant’s police service on reasonable request; (iv) prohibiting the respondent from adjusting or otherwise altering any of the settings on any such electronic devices which would hide (temporarily or altogether) the details of communications sent or received thereon; (v) prohibiting the respondent from deleting the call history, text message history, internet browsing history, internet cache or any other records showing or tending to show the usage of any such electronic device owned, possessed or used by him without the prior permission of an officer of the applicant’s Offender Management Unit of Cathcart Police Office; and (vi) requiring the respondent to inform the officer in charge of the applicant’s Offender Management Unit, Cathcart Police Office, of any employment or work, including voluntary work, he seeks or is otherwise offered, all in terms of the second crave in the application as amended; finds the respondent liable to the applicant in the expenses occasioned by the appeal; on the motion of the respondent, modifies any such award of expenses to nil in respect that the respondent is in receipt of legal aid with a nil contribution; and remits to the sheriff to proceed as accords.

NOTE :- Background [1] At or about the beginning of October 2015, the then chief constable for Scotland brought a summary application craving the court to make a risk of sexual harm order (hereinafter referred to as “RSHO”) under section 2(6) of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (hereinafter referred to as “the Act”) against the respondent. The application also contained a crave for an interim RSHO under section 5 of the Act. [2] On 16 October 2015 the sheriff heard and refused a motion by the applicant for an interim RSHO. For the motion to be granted, the sheriff required to be satisfied (a) that the application had been intimated to the respondent; (b) that prima facie the respondent had on at least two occasions done a proscribed act within subsection (5) of section 2 of the Act; and (c) that it was just to make the order. (See section 5(4) of the Act). [3] In the event, and having considered the competing submissions, the sheriff refused to make an interim RSHO. In his note dated 20 November 2015, the sheriff explained that whilst he was satisfied regarding intimation having been made and the prima facie commission of proscribed acts on at least two occasions, he was not satisfied that it was just to make the interim order sought. [4] It will be seen from the decision section of the sheriff’s note that he relied to a material

extent upon the fact that the perceived risk of sexual harm presented by the respondent, in terms of the summary application, related to the respondent’s position as a professional gymnastics coach. The sheriff goes on to mention, at paragraph [16] in his note, the applicant’s averment to the effect that the respondent’s alleged sexual activity involving children had arisen “from the opportunities presented to him as a gymnastics coach of children”. He notes, specifically, the following passage: “It is believed and averred that [the respondent] has exploited his position as a gymnastics coach to his advantage to coerce and influence female children to receive and send explicit sexual messages and to engage in sexual activity with them”. (See article of condescendence 6). [5] The fact that the respondent had been suspended from his gymnastics coaching post, pending the outcome of a criminal investigation, led the sheriff to conclude that there was a material diminution in “the prima facie risk of sexual harm presented by the respondent in the interim period prior to final determination of this application.” The sheriff then observed that the materiality of that risk was a relevant factor in deciding whether it was just to make an interim RSHO. (See paragraph [19] in his note). [6] At paragraph [20] in the note, the sheriff records that he balanced what he perceived to be a

diminished prima facie risk against the nature and extent of the interference with the respondent’s rights were the interim order to be granted and, finally, at paragraph [21] the sheriff indicates that he took account of the fact that “these proceedings are summary in nature and were likely (or, at least, ought to) proceed to a final hearing with relative expedition.” Applicant’s submissions in the appeal [7] Against that background, the solicitor for the applicant submitted that the sheriff had erred in not being satisfied that it was just to make the order sought. The main thrust of the applicant’s argument was to the effect that the sheriff had failed to attribute sufficient weight to the general risk posed by the respondent towards female children notwithstanding the fact that he was currently suspended from his position as a gymnastics coach. It was submitted that the sheriff had erred in failing to take account of a material consideration, viz. the risk of sexual harm which the respondent posed to female children generally as opposed to the risk arriving from the specific context of gymnastics. [8] The solicitor for the applicant accepted that much was said by way of averment regarding the respondent’s gymnastics role and, in effect, his alleged abuse of that role. However, she also pointed to the averments contained within article 2 of condescendence. Inter alia , those

averments narrated that the respondent had been convicted at Glasgow Sheriff Court on 7 June 2013 of an offence contrary to section 127 of the Communications Act 2003. The averments went on to explain that said conviction had arisen from the respondent’s contact with a 15 year old female who happened to be a friend of the respondent’s younger sister. The solicitor for the applicant stressed that the course of conduct giving rise to the conviction had been entirely independent of the respondent’s role as a gymnastics coach. [9] Therefore, in line with what was specifically averred within article 6, the applicant maintained that the respondent posed a significant risk of sexual offending against female children. Whilst, as it happened, he had exploited his gymnastics coaching role, that feature did not necessarily inform the nature and extent of the risk which he posed to young female children in general. Respondent’s submissions in the appeal [10] The solicitor for the respondent founded largely upon the proposition that, in refusing the interim order, the sheriff had been doing no more than exercising his discretion in a proper fashion. In doing so, it was argued that he required to balance all the relevant factors. It was submitted that an interim RSHO, if granted, would significantly interfere with the respondent’s personal freedoms and lifestyle taken as a whole. Given that

the only exceptions anticipated in terms of the order as craved involved “accidental or inadvertent contact”, the solicitor for the respondent contended that a multitude of situations might arise in which entirely innocent albeit deliberate contact would trigger a breach of the order. The example of routine contact with young female shop workers in a retail context was cited in the course of the debate. Accordingly, the solicitor for the respondent submitted that the sheriff had not erred and that the appeal should be refused. Reply on behalf of the applicant [11] In her reply, the solicitor for the applicant recognised that certain of the language used in each of the craves was less than fortuitous and did not coincide with what she considered to be the proper and necessary wording of the order sought. Therefore, she invited the court, were it to be considering allowing the appeal and making the interim RSHO sought, at the same time, to allow each crave to be amended to incorporate the phrase “unavoidable contact or contact incidental to daily life” as a replacement for the phrase “accidental or inadvertent contact”. Discussion and decision [12] I approach this matter and, in particular, the application for an interim RSHO, without the benefit of any authority. Both sides indicated that they were unaware of any relevant case law. [13] Before the court can make an interim RSHO

it requires to be satisfied in terms of section 5(4) of the Act: “(b) that prima facie the person against whom the order is sought has on at least two occasions , whether before or after the commencement of section 2 above, done an act within subsection (5) of that section;” [14] I observe that there appears to be no mention within the statutory provisions of any prima facie risk of sexual conduct or activity towards children. The prima facie test under section 5(4)(b) is simply directed towards whether proscribed acts, at least two in number, have been perpetrated by the person in respect of whom the order is being sought. [15] However, when one looks to the titular nomenclature of the orders provided for under sections 2 and 5 of the Act and to the terms of section 2(6) it is plain that the legislation is directed towards “protecting children generally or any child from harm” emanating from the individual against whom the order is sought. Such an individual attracts the need for protective measures by indulging in untoward (and no doubt criminal, if proved) sexual behaviour involving children. For my part, therefore, I am satisfied that RSHOs and interim RSHOs might properly be invoked in circumstances where a colourable risk of sexual harm exists to children generally or to any particular child. The application of sections 2 and 5 of the Act is not, in my view, necessarily

“context specific”. [16] Turning to the sheriff’s reasoning it is clear that his reading of the summary application led him to conclude that any risk of sexual harm from the respondent was intimately connected with the exploitation of his position as a gymnastics coach and “the opportunities presented to him”. (See article 6). Whilst the sheriff appears to have recognised that “…notwithstanding the suspension from his gymnastics coaching post, the respondent may well (indeed, was likely to) have contact with children out with gymnastics”, he does not appear to have given much weight to that proposition. [17] I accept the submission advanced on behalf of the applicant to the effect that the sheriff does appear to have overlooked the significance of the applicant’s averments in article 2. These averments do not simply relate to allegations as to the respondent’s conduct towards a 15 year old girl. They relate to a criminal conviction the existence of which was, for the record, not disputed on the respondent’s behalf in the course of the appeal. Nor do I understand that said conviction was in any way disputed for the purposes of the motion before the sheriff. [18] The criminal conduct on the part of the respondent, all as set out in article 2 is, indeed, exactly the sort of conduct which would give rise to the inference that the respondent posed a risk of sexual harm towards

children generally or to any child and that, consequently, such children may require protection from the respondent’s behaviour. [19] In my opinion, in determining the issue of whether it was just to make an interim RSHO, the sheriff placed undue focus upon the respondent’s role as a gymnastics coach. The fact that the respondent may have exploited that role in pursuit of some form of sexual gratification with one particular teenage girl does not constrain or confine the nature of the risk posed by the respondent. In determining that the suspension of the respondent from his coaching position had materially diminished the prima facie risk of sexual harm presented by him, it seems to me that the sheriff confused the question of risk with that of opportunity . In other words, whilst it might readily be accepted that one particular avenue of opportunity had been closed, it cannot be said, particularly when one has regard to the incontrovertible averments in article 2, that the wider risk of sexual harm presented by the respondent had truly been diminished to any material extent. [20] Therefore, I consider that the basis for the sheriff’s conclusion that it was not just to make an interim RSHO was flawed. I have acceded to the submissions advanced on behalf of the applicant in conjunction with the motion for amendment of each crave. In considering the summary application and the

motion for an interim RSHO, the sheriff, in my view, ought to have given due weight to the more general risk posed by the respondent rather than to certain, particular circumstances in which the risk might have happened to manifest itself. The more general risk of harm was the subject of ample and compelling averment within the application. On the material presented, had the sheriff given weight to these factors, it seems to me that there would have been no basis upon which to avoid the conclusion that the making of an interim RSHO was, indeed the just thing to do. [21] Having determined that the appeal must succeed, I reflected upon whether the matter should be remitted back to the sheriff or whether the making of an interim RSHO was now at large for this court. I have concluded that the latter approach must apply. Three factors lead me to that conclusion. Firstly, in making such an order, I am simply putting in place what I consider ought to have been the decision of the court at first instance, on the basis of all the material presented to it. Secondly, the manner in which the appeal was conducted on both sides suggested that, should the appeal be allowed, it followed that the making of an interim RSHO would be the outcome. Thirdly, the legislative provisions involved here exist for the protection of children. It would be absurd and potentially unsafe were this court to be

precluded from making such an order should it consider it just to do so and that without any further delay. [22] Accordingly, I have recalled the sheriff’s interlocutor and I have instead made the order sought under and in terms of crave 2 in the summary application as amended. At the conclusion of the appeal, the solicitor for the applicant moved for expenses should the appeal be successful. The solicitor for the respondent advised that the respondent is in receipt of legal aid with a nil contribution. That being so, I have modified the award of expenses reflecting the applicant’s success on appeal to nil. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotSC/2016/[2016]SCGLA9.html