HMA V NEIL COOPER 2018

A first instance Sheriff who did not take in to account the effect of a notification requirement of a man who was fined after being found guilty of sexual assault has his sentence reduced by the appeal Court. Mr Cooper has successfully challenged his five-year registration as a sex offender. The appeal Court ruled that the notification requirements imposed for the sexual offence in which the sheriff considered to be “at the lower end of the scale” was “unnecessary”.

Neil Cooper was convicted after Trial of breaching section 3 of the Sexual Offences Act 2009. The Sheriff after considering a Criminal Justice Social Work report came to the view that offence did not even merit a Community Payback Order and this a fine was imposed instead, of only £300.00.

However, the sheriff also had the option to impose a notification requirement on the offender, of how long he considered appropriate as the offender was a sexual offender. However the Sheriff concluded that Parliament decided that it must be a 5 year notification period and this was not up to him.

However, the appeal court outlined that this was not true and stated that “The notification requirements which follow upon a particular disposal are, of course, determined by statute; however, the sentence selected by the sheriff determines what the notification period is”. The appellant argued that this was disproportionate to his crime.

The appeal court agreed with the appellant and outlined that the first instance sheriff has erred in law. The Sheriff Principal stated: “In cases where the legislature has imposed automatic registration requirements which vary according to the sentence passed, the period and consequences of the requirements are relevant considerations in the sentencing exercise and should be taken into account. Adding “we consider that the requirement to register as a sex offender for a five year period, which automatically follows from the imposition of a fine, is unnecessary for the purposes of public protection and has an disproportionately penal effect on the appellant.” The conviction was quashed and a CPO was imposed instead.