Tailored SHPOs for Child-Grooming Risk: Incidental-Contact Carve‑Out and Digital-Device Controls; English Guidelines Only as a Cross‑Check

1. Introduction

His Majesty's Advocate appealed to the Appeal Court, High Court of Justiciary against sentence imposed on CM following jury convictions in the Sheriff Court for historic violent and penetrative sexual abuse of his daughter (AA) (charges 1–2, 1982–1988) and more recent sexual assaults and sexual communications directed at a teenage girl (BB) (charges 7–8, 2022).

The Crown’s appeal advanced two principal issues:

  1. whether the custodial term for the penetrative abuse in charge 2 (3 years) was unduly lenient; and
  2. whether the sheriff erred in refusing a Sexual Harm Prevention Order (SHPO), thereby failing adequately to protect the public.

The decision is significant for (i) the limits of appellate intervention where a sentence is “conspicuously lenient” yet still within the permissible range, (ii) the court’s insistence that English/Welsh guidelines are, at most, a careful cross-check, and (iii) the court’s approach to crafting SHPO conditions—particularly where digital grooming risks arise and where broad “no contact with children” prohibitions may be imprecise or unworkable.

2. Summary of the Judgment

  • Ground 1 refused: Although the court viewed the 3-year sentence on charge 2 as “conspicuously lenient”, it held the sentence was not “unduly lenient” applying HM Advocate v Bell 1995 SCCR 244, largely because HM Advocate v B(C) [2023] HCJAC 4, 2023 JC 59 (4 years for more prolonged, multi-complainer intrafamilial abuse) anchored the reasonable sentencing range.
  • Ground 2 allowed: The court held an SHPO was necessary under Abusive Behaviour and Sexual Harm (Scotland) Act 2016, s 11 and imposed a 10-year order, refined to:
    • apply to children under 16,
    • include an incidental/unavoidable contact carve-out, and
    • contain targeted electronic device notification/inspection and anti-concealment conditions addressing online grooming risk.

3. Analysis

A. Precedents Cited

(i) The test for “unduly lenient” Crown appeals

The court applied the classic formulation in HM Advocate v Bell 1995 SCCR 244: an appeal does not succeed merely because the appeal court would have imposed a higher sentence; the sentence must fall outside the range that a sentencer, applying their mind to all relevant factors, could reasonably regard as appropriate. The court also reiterated that weight is due to the trial judge’s advantage of hearing the evidence.

It further reminded the Crown of the need for careful case selection and careful formulation of grounds, citing HM Advocate v McKay 1996 JC 110 and HM Advocate v Bennett 1997 JC 49.

(ii) Scottish precedent as the primary guide; English guidelines as cross-check only

Reaffirming HM Advocate v Collins [2016] HCJAC 102, 2017 JC 99 (at para 30 as quoted), the court stressed that—absent a Scottish Sentencing Council offence guideline—Scottish reported appeal decisions remain the primary source of sentencing guidance.

On English and Welsh guidelines, the court adopted and applied Sutherland v HM Advocate [2015] HCJAC 115, 2016 SLT 93: such guidelines should not be used “in a rigid or mechanistic fashion” given different regimes and practices, and ordinarily serve only as a broad cross-check on a sentence reached by reference to Scottish law and precedent.

The court explained why the Crown’s proposed cross-check (the England/Wales guideline for s 6 of the Sexual Offences Act 2003) was especially problematic: while Scots law and the Scottish equivalent offence can carry life, the English comparators have different maxima (life for s 6 but 14 years for s 25). The court accepted the Advocate Depute’s eventual recognition that s 25 ranges were more aligned with Scottish practice than the s 6 guideline ranges relied upon by the Crown.

(iii) The key comparator: HM Advocate v B(C) [2023] HCJAC 4, 2023 JC 59

B(C) was treated as the most directly relevant Scottish comparator. There, the Appeal Court increased a sentence from 2 years to 4 years for prolonged intrafamilial sexual abuse including digital penetration, grooming, normalisation of abuse, and threats to prevent disclosure. In the present case, the sheriff expressly relied on B(C), adjusting downwards for a shorter libel and taking age into account.

Critically, the Appeal Court did not simply compare outcomes; it compared the constellation of aggravations:

  • Present case: very high harm; object penetration (clothes pegs) and severe physical consequences; abuse over nearly 4 years; egregious parental breach of trust.
  • B(C): longer duration (10 years) and additional aggravations (abuse beginning at age 2–3; overlapping abuse of another daughter; abuse occurring in presence of another child).

Because B(C) placed a 4-year sentence within the reasonable Scottish range for more extensive conduct, it prevented the court from concluding that 3 years here fell outside the range open to a sheriff—even if the Appeal Court itself considered it lenient.

(iv) Other authorities relied upon by the Crown—and distinguished

The Crown cited HM Advocate v RB [2025] HCJAC 7, 2025 JC 302, HM Advocate v Collins [2016] HCJAC 102, 2017 JC 99 and JM v HM Advocate [2019] HCJAC 9. The court accepted these were “rather different”:

  • RB involved a violent rape of a 10-year-old in coercive circumstances (locking the child in), plus a separate incident involving a very young boy. It was therefore a more acute violence/coercion profile than charge 2 here.
  • Collins involved multiple complainers and repeated rapes over an extended period in an institutional context, again materially different in structure and scale.
  • JM involved three daughters over long periods but largely non-penetrative conduct with one penetrative act, alongside strong mitigation (exemplary intervening life, health, supportive family), and the appeal was by the offender resulting in reduction.

(v) Repetition, breach of trust, and public denunciation as aggravating themes

The Crown’s submissions invoked authorities on repetition and seriousness—HM Advocate v MacGregor [2025] HCJAC 28; 2025 JC 358, HM Advocate v JT 2005 1 JC 86, and HM Advocate v Cooperwhite [2013] HCJAC 88, 2013 SLT 975—and the broader societal denunciation of child sexual offending from A v HM Advocate [2015] HCJAC 105, 2016 SLT 26. These principles were not rejected; rather, they did not displace the Bell threshold when B(C) was used to calibrate the permissible range.

(vi) Crown “forum choice” does not cap appropriate sentence

The respondent argued the sheriff court forum selection mattered (HM Advocate v Stalker 2003 SCCR 734). The Appeal Court firmly rejected any notion that the sheriff was “constrained” by the 5-year maximum: if the just sentence exceeded competence, the sheriff should remit under Criminal Procedure (Scotland) Act section 195. The court reiterated Stalker and McGhee v HM Advocate [2006] HCJAC 87, 2006 SCCR 712: the decisive consideration is the sentence that justice requires, not what the Crown’s chosen forum might be thought to imply.

(vii) SHPO drafting constraints: precision and overbreadth

For the SHPO, the respondent relied on R v Smith [2011] EWCA Crim 1772 to illustrate how an unqualified “no contact with under 18s” prohibition can become unworkable (shops, public transport, incidental contact). They also relied on R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2010] AC 345 for the principle that legal rules affecting liberty must be sufficiently precise and foreseeable.

The Appeal Court effectively accepted these drafting concerns by adopting a narrower age threshold (under 16) and an explicit incidental/unavoidable contact exemption, while still holding an SHPO necessary and proportionate.

B. Legal Reasoning

(i) Why the custodial term (charge 2) survived the “unduly lenient” challenge

The court’s reasoning is best understood as a structured application of Bell:

  1. Identify gravity: The court catalogued extremely high culpability and harm: penetrative abuse of a child by her father, use of objects, pain, secrecy/grooming, prolonged duration, and lifelong consequences.
  2. Recognise apparent leniency: It openly described the sentence as “conspicuously lenient.”
  3. Apply the appellate limit: The legal question was not “is it lenient?” but “is it unduly lenient?”, i.e., outside the reasonable range.
  4. Anchor the range in Scottish precedent: With B(C) as the closest comparator, and given the mixed aggravation/mitigation comparison between the two cases, the court could not say 3 years was below the reasonable range open to the sheriff.
  5. Consider overall sentencing structure: The court noted the consecutive sentence for charges 7 and 8 (though short) brought the total closer to B(C).

The result illustrates a recurring theme in Scottish sentence appeals: even very grave facts do not guarantee Crown success if the appellate court cannot responsibly mark the sentence as beyond the reasonable spectrum when benchmarked against recent Scottish outcomes.

(ii) Why an SHPO was “necessary” notwithstanding licence conditions and notification

The sheriff had considered that release on licence for a sexual offence would permit adequate public protection and that reports suggested community manageability.

The Appeal Court’s reasoning proceeded differently:

  • Pattern/propensity reasoning: Two distinct courses of child sexual offending separated by decades supported a finding that the respondent’s propensity remained “active” (including the court’s express observation that some male sex offenders continue into advanced age).
  • Opportunity-driven cessation: In both AA and BB, the offending ceased when opportunity was removed (AA removed from care; BB disclosed), reinforcing risk if opportunity recurs.
  • Specific risk identification: The court identified both contact sexual abuse risk and non-contact electronic communications grooming risk.
  • Necessity under s 11: Those factors satisfied the statutory test that an SHPO is “necessary” to protect the public (notably children) from sexual harm.

Importantly, the court moved beyond generic restrictions. It imposed targeted, technology-focused conditions: device notification, inspection facilitation (including passwords), bans on deleting communications history without permission, and bans on anonymising/anti-logging tools. This reflects an explicit judicial recognition that modern child sexual harm frequently includes digital “infrastructure”, and that protective orders should be engineered to that reality.

C. Impact

(i) Crown appeals: “conspicuously lenient” is not enough

The decision underscores the continuing strength of the Bell restraint. Even where the Appeal Court expresses moral and evaluative condemnation of the conduct and considers the sentence very lenient, it will not intervene unless it can articulate—by reference to Scottish precedent—that the sentencing judge stepped outside a defensible range.

(ii) Cross-jurisdictional guideline arguments will be treated cautiously

The judgment provides a practical warning: large disparities between Scottish sentences and England/Wales guideline ranges (even for conduct that looks similar) will not, without more, carry the appeal. The court’s emphasis on maxima, offence structure, and “regime differences” suggests future Crown appeals should deploy English/Welsh guidelines only as a carefully calibrated cross-check and preferably via a comparator whose sentencing range aligns with Scottish practice.

(iii) SHPOs: courts will tailor prohibitions to avoid overbreadth, but will add robust digital controls

The SHPO portion may be the most operationally influential. It signals:

  • broad “no contact with under 18s” terms are vulnerable unless refined for precision and day-to-day feasibility (incidental contact carve-outs);
  • the age threshold may be adjusted to proportionality (here under 16);
  • where grooming via social media is part of the offending, SHPOs can and should include detailed device inspection and anti-concealment provisions.

Practically, this provides a model template for future SHPO drafting in Scotland, especially in cases involving online messaging, image solicitation, or covert communications.

4. Complex Concepts Simplified

“Unduly lenient”
Not “too low” in an abstract sense, but so low that it falls outside what a reasonable judge could impose after considering all relevant factors (HM Advocate v Bell 1995 SCCR 244).
“Range of sentences”
The law recognises that sentencing is not a single correct number. Appellate courts therefore ask whether the sentence is within a permissible band, informed primarily by Scottish appeal decisions and the facts of the case.
Cross-check with English/Welsh guidelines
A limited sense-check only, not a direct transplant. Differences in offence definitions, maxima, and sentencing frameworks mean guidelines must not be applied mechanically (Sutherland v HM Advocate [2015] HCJAC 115, 2016 SLT 93).
SHPO (Sexual Harm Prevention Order)
A civil preventative order imposed in connection with sexual offending, containing prohibitions/requirements to protect the public from sexual harm. It must be shown to be necessary for public protection (here under Abusive Behaviour and Sexual Harm (Scotland) Act 2016, s 11).
“Incidental or unavoidable contact” carve-out
A drafting tool acknowledging ordinary life (shops, public places) where contact with children can occur unintentionally, preventing criminalisation of everyday activity while still prohibiting deliberate or avoidable contact.

5. Conclusion

This decision draws a clear line between leniency and undue leniency: even appalling sexual abuse and lifelong harm will not justify appellate interference unless the sentence can be shown—by reference to Scottish precedent, particularly HM Advocate v B(C) [2023] HCJAC 4, 2023 JC 59—to be outside the reasonable range required by HM Advocate v Bell 1995 SCCR 244.

At the same time, the court strengthened Scotland’s protective-order practice by imposing a carefully bounded but technologically robust 10-year SHPO, combining proportionality (under-16 threshold, incidental contact exemption) with modern risk controls (device disclosure, inspection facilitation, and anti-concealment prohibitions). For future cases involving grooming and online communications, the SHPO terms provide a concrete judicial template and a clear signal that digital supervision mechanisms are now central to effective public protection.