Court issues guidance on operation of internet restrictions
Sheriffs imposing sentencing requirements that allow significant discretion to supervising officers in aspects of daily life such as internet access, must be confident that the practices being operated in their sheriffdoms are what they expect, the Criminal Appeal Court has stated.
The court was giving its reasons for refusing the appeal of AListair Ross, who was convicted of an attempt at “communicating indecently with an older child”, contrary to the Sexual Offences (Scotland) Act 2009, s 34(1). Over a five day period in March 2014, he had repeatedly sent written sexual communications over the internet to a person whom he believed to be a 13 year old girl, but who was, in fact, a covert internet investigator.
In February 2015 the accused was sentenced to a community payback order which included a conduct requirement that he should not own, use or have in his possession any internet enabled device, or use any type of social media, without the prior approval of his supervising officer.
Before the appeal court he complained that the sheriff’s intention had been frustrated by the manner in which the requirements had been interpreted by the supervising officer. He had not had any access to the internet, having initially been told that he would not be allowed access to the internet until his case had passed at least its three month review. At that review, he was told he would not be allowed to own or possess any internet enabled device until at least his six month review. He would be allowed supervised access to the internet one day per week, within a setting such as a library. Because of what he had been told, he had not sought permission to use any device.
In practice he had been subject to a blanket ban, which was impermissible and disproportionate; alternative conditions should be imposed that would allow him to own and use an approved device, recording his browsing history.
Refusing the appeal, Lord Justice Clerk Carloway, who sat with Lady Paton and Lord Menzies, said the requirement appeared to be working well, and one way or another the appellant would soon be given internet access again. There was no reason to conclude that the sheriff was unaware of the way the restriction was operated locally, and no basis for holding that it was being done in an unduly restrictive way.
However he added that the appeal raised "a point of general importance in relation to the extent to which a court should in effect delegate significant matters of this type to the discretion of supervising officers". If, for example, a sheriff did not envisage a complete prohibition on internet use for, say, six months, "it would be unfortunate if, in practice, that is what happens". But, "against that, there is an imperative not to have sheriffs micro-managing common requirements which are being properly supervised on the ground by skilled and competent social workers".
Lord Carloway continued: "It may be sufficient for present purposes to say that, if sheriffs are imposing requirements which do allow a large amount of discretion to supervising officers in important aspects of daily life, such as internet access, they must be confident that the practices being operated in their sheriffdoms are generally as they expect them to be. No doubt, in that context, they will familiarise themselves with what is involved and will consider any representations properly made to them...
"If there is a potential problem in a particular sheriffdom, the sheriff will undoubtedly require to spell out the conditions of any requirement in greater detail, perhaps making it clear in a given case that the offender is to be given some access to the internet in a particular manner each day, week or month", as well as seeking details of any proposed programme for internet access for the particular offender. In exceptional cases, he might require a “progress review” of the community payback order, as provided for by the legislation. The offender might also apply for a variation.