BILL OF ADVOCATION BY MACKENZIE FRED ANDREW HORNER AGAINST HMA

Factual and Procedural Background

The Plaintiff pled guilty on 7 November 2023 at Falkirk Sheriff Court to taking or permitting to be taken indecent photographs of children contrary to section 52(1)(a) of the Civic Government (Scotland) Act 1982. The offence period was between 9 February 2018 and 24 June 2022, during which the Plaintiff was aged between 12 and 16. At conviction, the Plaintiff was 18 years old. The Sheriff deferred sentencing to 5 December 2023 to allow preparation of reports and assessments. On 7 November 2023, the Sheriff recorded that the Plaintiff was made subject ad interim to notification requirements under Part 2 of the Sexual Offences Act 2003. At the deferred sentence hearing, the Sheriff imposed a community payback order and determined that the Plaintiff would not be subject to the notification requirements. A subsequent review was fixed for 30 January 2024. Despite the Sheriff’s order, Police Scotland maintained that the notification requirements remained in place due to the original certification. The Sheriff Clerk queried whether the original minute could be amended to resolve this issue. The Plaintiff challenged the legality of the ad interim notification order by way of a Bill of Advocation, asserting the Sheriff lacked power to make such an order and that section 300A of the Criminal Procedure (Scotland) Act 1995 could not be used to amend the minute.

Legal Issues Presented

1. Whether the Sheriff had statutory power under the Sexual Offences Act 2003 to make an ad interim notification order.
2. Whether the notification requirements under Part 2 of the Sexual Offences Act 2003 arise automatically upon conviction or require a court order.
3. The proper procedure for determining whether an offender should be subject to notification requirements when the offender is under 18 and the offence involves indecent images of children under 16, as per paragraph 45 of Schedule 3 to the 2003 Act.
4. Whether the Sheriff’s order on 5 December 2023 effectively revoked or amended the November 7 certification.
5. The appropriate method to challenge or rectify an allegedly incompetent notification order under the 2003 Act.

Arguments of the Parties

Appellant's Arguments

• The Sheriff lacked statutory authority to make an ad interim notification order under the Sexual Offences Act 2003.
• The November 7, 2023 order was incompetent and should be quashed.
• Section 300A of the Criminal Procedure (Scotland) Act 1995 does not permit amendment of the minute as the irregularity does not fall within the definition of "procedural irregularity".
• The only proper method to challenge the incompetent order is by appeal, not by amendment or other procedural mechanisms.

Respondent's Arguments

• The Crown agreed that the Plaintiff was subject to an incompetent interim order and invited the court to allow the Bill of Advocation.
• There was no mention of paragraph 45 of Schedule 3 to the 2003 Act at the initial hearing, indicating a procedural omission.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully reviewed the Sheriff Court minutes, certificate, and related documents. It concluded that no interim or provisional notification order was validly made on 7 November 2023, despite the Sheriff’s report stating otherwise. The statutory scheme under the Sexual Offences Act 2003 does not empower the court to "order" notification requirements; rather, these arise automatically upon certification under section 92 once a conviction for a relevant offence is recorded. The certificate issued on 7 November 2023 was final and could not be revoked or set aside by the Sheriff at the subsequent sentencing hearing on 5 December 2023. The Sheriff’s attempt to declare the Plaintiff not subject to notification requirements at the deferred sentence hearing was procedurally incompetent as it attempted to rewrite history and undo a final certificate. The correct procedure would have been for the Sheriff to refrain from issuing the certification at the initial hearing if it was anticipated that the notification requirements might be contested under paragraph 45(b) of Schedule 3. The court acknowledged that the Sheriff’s underlying intention was not to subject the Plaintiff to notification requirements, but the procedural missteps caused confusion. Given the statutory framework and precedent, the only appropriate remedy was to quash the certification issued on 7 November 2023.

Holding and Implications

The court ALLOWED the Bill of Advocation to the extent of setting aside the certification made on 7 November 2023 that the Plaintiff had been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003. This decision removes the Plaintiff from the notification requirements that had been deemed to apply by virtue of that certification.

The direct effect is to clarify the legal status of the Plaintiff regarding notification requirements and resolve the confusion caused by the procedural irregularities. No new precedent was established beyond reaffirming the existing statutory interpretation and procedural framework governing notification requirements under the Sexual Offences Act 2003.