SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT INVERNESS

B335/09

JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC in the cause CHIEF CONSTABLE, NORTHERN CONSTABULARY Pursuer and Respondent against A Defender and Appellant

Act: Miss Jane Davey, solicitor, Highland Council, Inverness

Alt: Mr Colin Forbes, solicitor, Civil Legal Assistance Office, Inverness

Inverness: 25th May 2010

The sheriff principal, having resumed consideration of the cause, allows the appeal and recalls the interlocutor of the sheriff dated 7 August 2009; finds no expenses due to or by either party in respect of the appeal; quoad ultra remits the cause to the sheriff to proceed as accords and in particular to consider of new whether or not to grant a sexual offences prevention order against the defender.

Note

[1] In this summary application the pursuer and respondent craved the court to grant a sexual offences prevention order against the defender and appellant in terms of section 104 of the Sexual Offences Act 2003 ("the Act"). He also sought an interim order under section 109(3) of the Act.

[2] At a hearing before service on 9 July 2009 the sheriff pronounced an order in the following terms:

The sheriff grants warrant to cite the defender by serving upon him a copy of the writ and warrant on a period of notice of 21 days, and ordains him to answer within the Sheriff Court House, Inverness, Sheriff Court House, The Castle, Inverness on the 7th day of August 2009 at 10 o'clock.

Grants an order ad interim in terms of 109(3) of the Sexual Offences Act 2003 prohibiting the defender from approaching, speaking to or communicating in any way, directly or indirectly, or forming an association with any child under the age of 16 years; residing or remaining within a residential address which is also occupied at that time by any child aged under 16 years of age; entering the grounds of any children's play area, school, nursery or other place designated for use by children, until further order of court.

[3] On 14 July 2009 two police officers served a copy of the interim order on the defender. It is not in dispute that they handed him a copy of the whole of the sheriff's order as set out in the preceding paragraph and, although the defender's solicitor was unable to confirm this, for present purposes I am prepared to assume that the officers also gave the defender a copy of the initial writ at that stage.

[4] Section 112(3) of the Act provides in short that the clerk of the court by which a sexual offences prevention order or interim sexual offences prevention order is made shall cause a copy of the order to be given to the person named in the order or sent to him by registered post or by recorded delivery. In this case it was not disputed that it was competent for the sheriff clerk to have caused a copy of the interim order to be given to the defender by delivering it to police officers to deliver in turn to the defender. But it should be noted here that, albeit that it appeared on the same sheet of paper above the interim order, the warrant of citation which had been granted by the sheriff was not part of the interim order and section 112(3) did not authorise the sheriff clerk or the police officers to effect citation of the defender in terms of the warrant.

[5] Having effected service of the interim order on the defender, one of the police officers completed a certificate of service in the following terms (I have omitted the names here, but they appear on the original of the certificate):

I, ................ , Officer of the Law, upon the 14^th day of July 2009, served a copy of the Interim Sexual Offences Prevention Order in terms of section 105 of the Sexual Offences Act Act 2003 (sic) granted at Inverness Sheriff Court on 9 July 2009 upon .............

This I did by delivering to him personally a certified copy of the said Sexual Offences Prevention Order in the presence of ............. who subscribes her signature hereto.

The certificate is dated 14 July 2009 and bears the signatures of the two police officers (the names of both of whom, despite the "her" in the penultimate line, suggest that they are male). It also has that of the defender beside the words: "I acknowledge receipt" which appear below the certificate. (In passing I notice that the reference in the certificate to section 105 was erroneous. Plainly it should have been section 109. But nothing turns on this now).

[6] At the hearing on 7 August 2009 a solicitor appeared before the sheriff on behalf of the pursuer but there was no appearance by or on behalf of the defender. In his very careful note the sheriff records that the pursuer's solicitor told him "that he was not surprised that the defender had not appeared as he was ordained to do because the unit monitoring him had been told by the defender that he was not going to oppose the order and indeed welcomed having set boundaries within which he was required to live". Later on in his note the sheriff recorded:

In my view, I was entitled to rely on the execution of service by two police officers as being ex facie valid and in the exercise of my discretion to grant the craves of the application having considered it, the productions and (the pursuer's solicitor's) submissions.

The upshot of the hearing was that the sheriff granted a sexual offences prevention order against the defender in terms of section 104 of the Act. For present purposes it is unnecessary to set this out in full. It is this order which is the subject of the present appeal. In his note of appeal in the defender stated various grounds of appeal, broadly to the effect that there had been insufficient evidence to justify the making of the order, that the sheriff had exercised his discretion unreasonably in granting it and that its terms were not sufficiently clear and unambiguous and were wider than was necessary to protect the public from harm.

[7] Part XXV of Chapter 3 of the Summary Applications and Appeals etc Rules 1999 ("the 1999 Rules") contains certain provisions which are specific to proceedings under the Act. But it was accepted that none of these is relevant in the present context, and that the issues which have now arisen fall to be determined by reference to the general rules applicable to summary applications which are set out in Part II of Chapter 2 of the 1999 Rules. For present purposes it is necessary to notice the following rules:

2.3 (1) The sheriff may relieve a party from the consequences of failure to comply with a provision in this Part which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit.

(2) Where the sheriff relieves a party from the consequences of a failure to comply with a provision in this Part of these Rules under paragraph (1), he may make such order as he thinks fit to enable the summary application to proceed as if the failure to comply with the provision had not occurred.

2.7 (1) Subject to paragraph (2), a warrant for citation or intimation may be signed by the sheriff or sheriff clerk.

(4) Where citation is necessary-

(a) the warrant of citation shall, subject to paragraphs (5) and (7A)(a) and rule 3.18.3(1) (appeals under section 103J of the Local Government (Scotland) Act 1973, be in Form 2; and

(b) citation shall, subject to paragraphs (7) and (7A)(b) and rules 2.13 (service where address of person is not known) and 3.18.3(2) (appeals under section 103J of the Local Government (Scotland) Act 1973), be in Form 3.

(8) Where citation is necessary, the certificate of citation shall be in Form 7 which shall be attached to the initial writ.

2.17         (1) A person who appears in a summary application shall not be entitled to state any objection to the regularity of the execution of citation, service or intimation on him, and his appearance shall remedy any defect in such citation, service or intimation.

(2)             Nothing in paragraph (1) shall preclude a party from pleading that the court has no jurisdiction

Rules 2.10 and 2.11 respectively contain various provisions about postal service and service within Scotland by sheriff officer. For present purposes it is unnecessary to refer to these in detail beyond observing that there is no indication in them that in the case of a summary application citation of a defender may be by a police officer.

[8] Forms 3 and 7 are of importance here and I therefore set them out in full (except that in Form 7 I have omitted the details about what is to be done when one or other of a time to pay direction, a time order or an order under section 2 of the Mortgage Rights (Scotland) Act 2001 is sought):

FORM 3

CITATION FOR SUMMARY APPLICATION

SHERIFFDOM OF (insert name of sheriffdom)

AT (insert place of sheriff court)

[A.B.], (insert designation and address) Pursuer

against

[C.D.], (insert designation and address) Defender

Court ref. no.

(Insert place and date) You [C.D.] are hereby served with this copy writ and warrant, and are required to answer it.

IF YOU ARE UNCERTAIN AS TO WHAT ACTION TO TAKE you should consult a solicitor. You may be eligible for legal aid depending on your income, and you can get information about legal aid from a solicitor. You may also obtain advice from any Citizens' Advice Bureau or other advice agency.

PLEASE NOTE THAT IF YOU DO NOTHING IN ANSWER TO THIS DOCUMENT the court may regard you as admitting the claim made against you and the pursuer may obtain decree against you in your absence.

Signed

[P.Q.], Sheriff Officer,

or [X.Y.] (add designation and business address)

Solicitor for the Pursuer

FORM 7

CERTIFICATE OF CITATION

(Insert place and date) I, hereby certify that up on the day of I duly cited [C.D.], Defender, to answer the foregoing writ. I did this by (state method of service; [if by officer and not by post, add in the presence of [L.M.], (insert designation), witness hereto with me subscribing;] and where service is executed by post state whether by registered post or the first class recorded delivery service).

Signed

[P.Q.], Sheriff Officer

[L.M.], witness

or [X.Y.] (add designation and business address)

Solicitor for the Pursuer

[9] At the outset of the hearing of the appeal the defender's solicitor stated that he wished to raise a preliminary question which was not foreshadowed in the grounds of appeal, namely whether there had been an irregularity in the citation of the defender. This was not opposed by the pursuer's solicitor. In the course of the ensuing discussion I heard submissions on this question and on two further questions, namely whether, if there had been such an irregularity, the pursuer should be relieved of the consequences of failure to comply with the relevant rules and what was the effect in the particular circumstances of this case of rule 2.17(1). It was recognised that, depending upon the answer to the first of these questions, the first and second might become academic. But it was indicated by the pursuer's solicitor that my opinion on the first question in particular would be of assistance nonetheless. So I shall deal with each question in turn.

[10] In relation to the first question the defender's solicitor drew attention to section 112(1)(e) of the Act which provides that an application for a sexual offences prevention order is to be made by summary application to the sheriff. It followed, he said, that this was a civil proceeding to which Part II of Chapter 2 of the 1999 Rules applied. Rules 2.10 and 2.11 respectively permitted postal service or service by a sheriff officer. The expression "sheriff officer" did not include a police officer and there was no provision either in the 1999 Rules or in the Act for service of an application by a police officer. It was accepted in light of section 112(3) that it had been competent for the police officers to have given a copy of the interim order to the defender on 14 July, 2009 and that, as a matter of fact, this copy had incorporated a copy of the warrant of citation which had been granted by the sheriff on 9 July, 2009. But this did not satisfy the terms of either of rules 2.7(4)(b) or 2.7(8). The former required that citation should be in Form 3 which contained important advice for the defender about what action he should take in response to the citation and what would be the possible consequence if he did nothing about it, and the latter required that the certificate of citation should be in Form 7, the terms of which differ from those of the certificate of service which had been completed by the police officers in this case. It followed that the sheriff had been wrong to conclude, as he had, that he had been entitled to rely on the execution of service by the two police officers as being ex facie valid.

[11] In response, the pursuer's solicitor indicated that she did not accept that service in this case upon the defender had been defective. It was accepted that he had not received Form 3 but he had received a copy of the warrant of citation along with the interim order and this had given him fair notice of the hearing which was to take place on 7 August, 2009 and that he needed to appear to answer the application on that date. She drew attention here to the sheriff's observation in his note to the effect that the pursuer's solicitor had informed him that he was not surprised that the defender had not appeared as he had been ordained to do because the unit monitoring him had been told by him that he was not going to oppose the order. She submitted that any defect arising from the fact that the certificate of service had not been in Form 7 had been cured by the fact that the defender had in fact received notice of the hearing on 7 August, 2009 and had signed an acknowledgement of receipt on the certificate of service which had been completed by the police officers. Rules 2.10 and 2.11 did not specifically provide that a sheriff officer must be used to effect service. Reference was made here to rule 3.16.4 which provides that in certain circumstances service of an application under the Adults with Incapacity (Scotland) Act 2000 may be effected by the sheriff clerk or by the managers of an authorised establishment, and also rule 3.29.4 which provides, in short, that the sheriff clerk shall serve a copy of one or other of certain types of order on the person against whom it has effect and that a failure by the sheriff clerk to comply with this rule shall not invalidate the order.

[12] In my opinion the purported citation of the defender in this case was plainly irregular, essentially for two reasons. In the first place I think that it is well-established that, just as in an ordinary action, so too in a summary application citation of a defender who has an address in Scotland may be either by post or personally by an officer of the court which, in the context of proceedings in the sheriff court, means a sheriff officer. Police officers may properly be described as officers of the law, but they are not officers of the court and it follows that they have no authority to cite defenders in summary applications. Besides, even if the officers in this case had had this authority, the failure to comply with rules 2.7(4)(b) and 2.7(8) would have rendered the citation irregular, and it was nothing to the point that the service by the officers of the interim order on 14 July 2009 might have been regular. It is true that in doing so the officers as a matter of fact delivered to the defender copies not only of the interim order itself but also of the warrant of citation signed by the sheriff. But a valid citation of the defender required that there should also have been delivered to him a form of citation in Form 3 duly completed and signed by a solicitor or a sheriff officer and that, following citation, there should have been attached to the initial writ a certificate of citation in Form 7, again duly completed and signed by a solicitor or sheriff officer. Needless to say, it is accepted that none of these essential steps was taken in this case. It follows in my opinion that the sheriff erred in holding, as he did, that the execution of service upon the defender had been valid.

[13] Turning to the second question, the pursuer's solicitor submitted that I should relieve the pursuer from the consequences of the failure to use the correct Forms 3 and 7 in terms of rule 2.3(1) and that accordingly I should not recall the order which had been made by the sheriff on 7 August 2009. She explained that the procedure which had been followed in this case had been that which had been followed by the police since the Act had come into force, and indeed also under the similar provisions of the Crime and Disorder Act 1998. The police would welcome guidance from the court as to the validity of this procedure. The defender in this type of case was often of limited intellectual ability and might also have a history of disobeying the orders of the courts. The purpose of the Act, which was the protection of the public, was best served by the current procedure which was that, following an ex parte hearing, police officers would hand to the defender personally copies of the warrant of citation, the interim order and the initial writ and they would go through with him the terms of the order to satisfy themselves that he understood it. This was a better way of ensuring this outcome than having sheriff officers hand over the documents to the defender. And in the present case any defect in service had been merely procedural, since the defender had received notice of the hearing on 7 August 2009, and ought not to invalidate the order which had been made that day by the sheriff having regard to the overall purpose of the legislation.

[14] In response, the defender's solicitor opposed any relief being given to the pursuer under rule 2.3(1). He submitted that, if it was the case that the defender was of limited intellectual ability, then it was all the more important that he should be given the advice which appeared on Form 3. In any event, this was not just a case in which the wrong form had been used since the service itself of the form should not have been effected by police officers. The police were aware that sheriff officers could be used to effect citation, and yet they had made a deliberate choice not to use them.

[15] I do not consider that it would be appropriate to excuse the failure by the pursuer to comply with the rules in regard to the citation of the defender. I might have been persuaded to take a more lenient view of the matter if this had been an isolated incident. But the fact that the procedure which was followed in this case was one which has been used, so it appears, since 1998 puts a very different complexion on the matter, and I think that it would be quite wrong for this court in effect to condone a conscious disregard by the police of the rules of procedure over such a lengthy period.

[16] Turning to the effect of rule 2.17(1), the defender's solicitor very properly drew attention to Johnston v Johnston 1965 SLT (Sh Ct) 29. In that case the wife pursuer raised an action of adherence and aliment against her husband, the defender. Service upon him was effected by registered post at the address at which the pursuer resided and she accepted service with the result that the defender did not enter appearance in the action at first instance before the sheriff-substitute. Not surprisingly, the latter was of the opinion that the defender had not been properly cited and dismissed the action on this ground and on the ground also that there was no jurisdiction in respect that the pursuer had not made reasonable enquiry to discover the defender's whereabouts. The pursuer appealed to the sheriff and the defender appeared in person at the hearing of the appeal, having apparently received intimation of the date and place of this hearing. Rule 13 of the then Ordinary Cause Rules provided: "A party who appears may not state any objection to the regularity of the service upon himself, and his appearance shall be deemed to remedy any defect in the service unless where jurisdiction has been constituted by citation or by arrestment ad fundandam jurisdictionem". At page 32 the sheriff (Sir Allan Walker QC) stated:

Since, in my opinion, any irregularity which has occurred is an irregularity in citation only, I think that I am entitled to hold, in terms of Rule 13 of the Sheriff Court Rules, that the appearance of the defender at the appeal prevents him from stating any objection to the regularity of the service upon himself, and that his appearance must be deemed to remedy any defect in service. The jurisdiction in this case is not a jurisdiction constituted by citation or by arrestment ad fundandam jurisdictionem, and these are the only kinds of case which are excluded from the ambit of the rule. I have, accordingly, remitted the case to the sheriff-substitute to proceed as accords, after an opportunity has been given to the defender to make his position clear. In view of what he told me at the appeal, it seems probable that he will not wish to defend the action, and that the sheriff-substitute will be free to grant a decree of adherence in ordinary form, following upon the proof which he has heard, and to decern for payment of aliment as agreed between the parties.

The defender's solicitor submitted that this case fell to be distinguished from the present case since the defender did wish to have the opportunity to challenge the order which had been made by the sheriff and its terms. Moreover, the earlier case dated from 1965 and ideas of rights had moved on since then. In this context he drew attention to section 3(1) of the Human Rights Act which provides: "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights". He referred here to articles 8 and 11 of the European Convention on Human Rights, and more especially to the defender's entitlement under article 6 to a fair and public hearing. Rule 2.17(1) was intended to avoid the situation in which a defender at the first hearing of a case raised a technical objection based upon a defect in service. The rule did not apply in the case of a defender who only appeared at an appeal and should be construed in such a way as to be compatible with his right to a fair hearing under article 6. If a defender appeared at first instance there would be no prejudice to him by reason of the absence of proper citation because he would have the opportunity to test the factual averments against him. But at the stage of an appeal the opportunity to do this would have gone. It was not the defender's fault in this case that there had not been proper service upon him and fairness required that he should be put back into the position in which he would have been then there been proper service upon him. Accordingly the order made by the sheriff on 7 August, 2009 should be recalled and the case remitted back to him for reconsideration.

[17] In response, the pursuer's solicitor submitted under reference to rule 2.17(1) that the defender's appearance had remedied any defect in the citation upon him and that I should not distinguish this case from the decision in Johnston v Johnston which should be followed.

[18] In the course of preparing my judgement I noticed the decision of Sheriff Principal Mowat QC in Cairney v Bulloch 1993 SCLR 901 (also 1994 SLT (Sh Ct) 37). This turned upon the proper construction of rule 18(1) of the Ordinary Cause Rules 1983 which provided: "A party who appears may not state any objection to the regularity of the service upon himself, and his appearance shall remedy any defect in the service". In that case (which was an ordinary cause) a purported form of citation of the defender took place which in the view of his solicitor was ineffective. The defender did not lodge a notice of intention to defend and the pursuer minuted for decree in absence. The sheriff clerk, having been informed by the defender's solicitor of the objection to citation, wrote to both parties' solicitors informing them that a hearing had been fixed before the sheriff and stating: "Please ensure your firm is represented at said hearing". At the hearing the sheriff, although accepting that on the face of the service copy initial writ the citation was flawed, held that the presence of the defender's solicitor at the hearing had cured any defect in the citation. The defender appealed, arguing that his appearance at the hearing had not amounted to an appearance within the meaning of rule 18(1). He submitted that, since the word "appearance" was not defined anywhere in the rules, it was necessary to go back to the original Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 1907, and in particular to rules 13 and 22. Rule 13 was in similar terms to rule 18(1) in the 1983 Rules, and rule 22 provided: "If the defender intends to state a defence he shall (except in a summary cause) before the expiry of the induciae lodge with the sheriff clerk a notice of appearance in the following terms ....... ". It was submitted that the word "appearance" in rule 13 must mean appearance as provided for in rule 22, i.e. the lodging of a notice of appearance and that, since there was no provision in the 1983 Rules for the lodging of a notice of appearance but instead a provision for the lodging of a notice of intention to defend, the word "appearance" in rule 18(1) of the 1983 Rules must mean the taking of the steps necessary to allow a defence to be stated, in other words the lodging of a notice of intention to defend. No such notice had been lodged and it followed that the attendance of the defender's solicitor at the hearing before the sheriff had not constituted an appearance within the meaning of rule 18(1). At page 904 Sheriff Principal Mowat stated:

I confess that I approach this appeal with the feeling that I should be slow to find that where a party's agent attends, at the request of the sheriff clerk, a hearing on the question of whether citation of that party has been validly executed, this should be construed as such an appearance by the party as to cure any defect in the service in terms of rule 18. I find it difficult to accept that the very act of attending court in order to argue that the service was invalid removes the right to object to it.

In that situation, I accept the submission of (the defender's solicitor) that, under the original Schedule 1 to the 1907 Act, the appearance referred to in rule 13 was the method of appearance provided for in rule 22. I find it significant that in all the cases cited to me, it was the lodging of a notice of appearance or entering appearance which cured any defect in service.

The question then comes to be whether the word 'appearance' in rule 18 of the 1983 Rules can mean anything less than the lodging of a notice of intention to defend which has replaced the lodging of a notice of appearance. I do not think that it does. The rationale of rule 18, it seems to me, is that a party cannot carry out the steps required of him by the citation, if he is actively to defend the case, and at the same time argue that the citation was not an effective notice to him of that requirement. In the case of Struthers, where it was said that the rationale of the rule was that 'once he has in fact been convened and is before the court, it matters not how his appearance was secured', the defenders had entered appearance. They had accordingly been convened before the court by means of the citation, even if it was a defective citation.

I consider that the situation was very different in the present case. In the first place, the defender was not himself called upon to attend at the interim hearing, the purpose of which was to consider whether the citation was effective. It was his agents who were requested to attend because they had raised that question with the sheriff clerk. The attendance of the solicitors was not, in any sense, in answer to the citation itself, so as to involve an acceptance that it had given due notice of the hearing. Secondly, the interim hearing did not appear to be concerned with the merits of the case. The letter from the sheriff clerk indicated that it was to discuss whether the citation had been effective and, if it was not, what procedure should follow as a result. The hearing itself was held in chambers. In these circumstances, I consider there is considerable merit in (the defender's solicitor's) submission that it was not a diet of the court at which the attendance of the defender's agents could constitute an appearance of the defender himself in terms of rule 18.

It does not appear that the decision of the sheriff in Johnston v Johnston was cited to Sheriff Principal Mowat, nor does it appear to have been argued that the appearance of the defender in the appeal to him of itself constituted an appearance within the meaning of the then rule 18(1).

[19] Since Cairney v Bulloch had not been cited to me, I thought it right to refer the parties to it and give them the opportunity to address me on it. At a subsequent hearing arranged for this purpose the defender's solicitor submitted that the language of rule 2.17(1) was sufficiently similar to that of rule 18 in the 1983 Rules to suggest that a similar approach should be taken to the meaning of the word "appear" in rule 2.17(1) as Sheriff Principal Mowat had taken to the meaning of the same word in rule 18 of the 1983 Rules. He referred too to James Gibb Property Management v Manders 2005 Hous LR 97 in which Sheriff Allan had held that lodging an application for a time to pay direction under the Debtors (Scotland) Act 1987 or appearing in court in support of such an application did not constitute an appearance within the meaning of rule 8.1(1) of the Ordinary Cause Rules 1993. Reference was made also to Colley v Celtic Pacific Ship Management (Overseas) Ltd 2001 SLT 320 in which Lord Macfadyen had allowed the defenders to appear at a by order during before him without formally entering appearance in the action and hence throwing away the point which they sought to take against the validity of the service of the summons upon them - see rule 16.11(1) of the Rules of the Court of Session 1994 which again is in similar terms to rule 2.17(1) in the present case.

[20] In response, the pursuer's solicitor rightly pointed out that the circumstances in Cairney v Bulloch fell to be distinguished from those in the present case in that in the earlier case decree had not yet been pronounced against the defender whereas in the present case it had been. She submitted as I understood her that, if decree had been pronounced Cairney v Bulloch and then the defender had sought to appeal and had challenged the merits of the sheriff's decision as had happened in the present case, he would not also have been entitled to take the point that there had been a defect in the citation upon. The difficulty was that in a summary application (as in the present case) there was no procedure whereby a defender could apply to be reponed or otherwise to have decree against him recalled. Reference was made here to Jamieson on Summary Applications at paragraph 30-33.

[21] The critical question here is what is meant by the words "appear" and "appearance" in rule 2.17(1) and in the corresponding provisions in the Ordinary Cause Rules, Summary Cause Rules and Small Claim Rules (rules 5.10(1), 5.11(1) and 6.10(1) respectively). Subject to one qualification, I agree with the reasoning which underpins Sheriff Principal Mowat's conclusion that in the context of the 1983 Rules appearance by a defender meant the lodging by him of a notice of intention to defend. By the same reasoning I consider that to appear in a summary application within the meaning of rule 2.17(1) means to appear or to be represented at the initial hearing of the application which has been fixed in terms of the warrant of citation. This the defender in the present case did not do, and it follows in my opinion that he is not barred by the terms of rule 2.17(1) from objecting to the regularity of the supposed citation upon him. And I should perhaps add here that I think that this result accords with both common sense and justice. It is true that the defender against whom decree in absence has been taken following an irregular citation always has the option of raising an action of reduction in the Court of Session. But this may be an expensive and time-consuming process especially for someone who lives at a distance from Edinburgh and, if the avenue of appeal to the sheriff principal is still open, it seems sensible that a defender should be entitled to pursue this and that he should not be prevented from taking this course on the basis that, by doing so, he is to be treated as throwing away the ground upon which he wishes to appeal.

[22] The one qualification to which I referred to in the preceding paragraph is that Sheriff Principal Mowat did not address the question whether a defender should be taken to have appeared where, rather than lodge a notice of intention to defend, he makes an application for a time to pay direction or a time order and, it may be, appears at a subsequent hearing fixed for the specific purpose of considering the application. As already indicated, in James Gibb Property Management v Manders Sheriff Allan held that this did not constitute an appearance for the purposes of rule 8.1(1) of the 1993 Rules. I am not sure that I agree with him in this. Given that the "object of all citation, whether edictal or otherwise, is to bring to the knowledge of the defender the proceedings which are impending against him in order that he may have time and opportunity to take the necessary steps for the protection of his interests" (see Corstorphine v Karsten 1898 1F 287, Lord Adam at page 296), it may be said that where the defender has had, and has taken, the opportunity to take one of the steps which the citation is designed to afford him, namely to lodge an application for a time to pay direction and thereafter to appear at a hearing fixed for the purpose of considering the application, he ought not thereafter to be entitled to plead an irregularity in the citation. But for present purposes it is unnecessary that I should reach a concluded view on this particular question.

[23] In summary therefore I consider that the defender's having lodged a note of appeal against the interlocutor of the sheriff dated 7 August 2009 and having subsequently appeared at the hearing of the appeal did not have the effect of disentitling him from stating an objection to the regularity of the execution of citation upon him. I am conscious that in reaching this conclusion I am differing from the conclusion reached by Sheriff Sir Allan Walker QC in Johnston v Johnston. But the circumstances of that case were readily distinguishable from those of the present case and one can see why the outcome there represented an essentially fair and pragmatic solution in the particular circumstances of that case. Besides, it is by no means clear that Sheriff Walker was addressed on, or specifically applied his mind to, the question what was meant by the word "appearance" in the context of the then rule 13 of the Ordinary Cause Rules.

[24] On the assumption that I was with him so far, the defender's solicitor submitted that I should recall the interlocutor of the sheriff dated 7 August 2009 and remit the cause to him to reconsider whether or not a sexual offences prevention order should be made against the defender having given him an opportunity to be heard (and for the avoidance of doubt it was not suggested that there was any need now to cite the defender in accordance with the rules as ought to have happened at the outset of the proceedings). On the assumption indicated I did not understand the pursuer's solicitor to oppose this course. The defender's solicitor accepted in principle that in this event an interim sexual offences prevention order should remain in place under section 109 of the Act pending the sheriff's reconsideration of the matter. But he submitted that the terms of the order sought by the pursuer were in certain respects too wide or alternatively uncertain or ambiguous. The defender and also those responsible for enforcing the order ought, so he said, to be in a position to know exactly what it was that the defender was or was not allowed to do in terms of the order. He referred here to Chief Constable, Tayside Police v Basterfield 2007 SLT (Sh Ct) 129.

[25] The crave in this summary application reads as follows:

To grant an order in terms of section 104 of the Sexual Offences Act 2003 ("the Act") against the defender prohibiting the defender, for a period of 10 years from:

(a)               approaching, speaking to or communicating in any way, directly or indirectly, or forming an association with any child under the age of 16 years;

(b)              residing or remaining within a residential address which is also occupied at that time by any child aged under 16 years of age:

(c)               entering the grounds of any children's play area, school, nursery or other place designated for use by children;

To grant an order ad interim in terms of section 109(3) of the Act.

(In passing, I cannot help thinking that the reference here to section 104 should in fact be to section 105(1) since these proceedings are in Scotland - see section 109(1). But nothing turns on this for present purposes).

[26] The defender's solicitor indicated that he took no exception to paragraph (b) of the crave or to the words "forming an association" in paragraph (a) and the words "play area" and "nursery" in paragraph (c). But he objected to the prohibition in paragraph (a) against approaching, speaking to or communicating in any way, directly or indirectly, with any child under the age of 16 years and he posed the question what would be the position were there to be a situation of impending danger or the defender came into contact with a child who was working in a shop or waiting at table. As for paragraph (c), he pointed out that schools were used for a variety of educational activities when children were absent, and he suggested that this particular prohibition should be qualified by words such as "during normal school hours". He objected in particular to the words "or other place designated for use by children", and he pointed out that a public library might well be used by a child. He posed the question what would be the position were the defender to be found in a community centre, village hall or public park. At the very least, so he contended, the prohibition in paragraph (c) should be qualified so that all concerned would know exactly what was and what was not allowed in pursuance of the order of the court.

[27] The pursuer's solicitor in short supported the making of an order in the terms sought by the pursuer's crave. She drew attention to section 113(1) of the Act which provides inter alia that a person commits an offence if, without reasonable excuse, he does anything which he is prohibited from doing by a sexual offences prevention order or an interim sexual offences prevention order.

[28] For my own part, although it is not strictly binding on me, I have no difficulty in following the dictum of Lord Bingham of Cornhill CJ (as he then was) in B v Chief Constable of Avon and Somerset Constabulary 2001 1WLR 340 at paragraph 33, viz: "If anyone is the subject of a prohibitory court order for breach of which he is liable to severe punishment, that person is entitled to know, clearly and unambiguously, what conduct he must avoid to comply with the order. Such clarity is essential for him. It is scarcely less essential for any authority responsible for policing compliance with the order and for any court called upon to decide whether the terms of the order have been broken. The order should be expressed in simple terms, easily understood even by those who, like the appellant, are not very bright".

[29] It is important I think to bear in mind that the question for the court at the stage of considering whether or not to make a sexual offences prevention order or an interim sexual offences prevention order is whether the order which it is proposed should be made states clearly what the defender is to be prohibited from doing and not whether he would have a reasonable excuse if, in a particular set of circumstances, he were to do something which is prohibited by the order. It respectfully seems to me that in his detailed discussion of the terms of the order sought in Basterfield the sheriff in that case at times fell into the trap of considering the second of these questions when he ought to have been concentrating on the first. If I may be permitted to say so, I think that the defender's solicitor in this case was in danger of falling into the same trap. Thus the prohibition sought in terms of paragraph (a) of the pursuer's crave against speaking to any child under the age of 16 years is perfectly clear in my opinion and its clarity is not undermined by the fact that in a particular situation, for example of impending danger, the defender might have a reasonable excuse to speak to such a child. Likewise, the order sought in terms of paragraph (c) against entering the grounds of a school is again in my view perfectly clear, and its clarity is again not undermined by the fact that the defender might have a reasonable excuse for doing so, for example in order to attend a tutorial class outside school hours in connection with an Open University course in which he had previously enrolled.

[30] As for the question posed by the defender's solicitor what is meant by the expression "or other place designated for use by children", it seems to me that the defender ought in practice to have no difficulty in understanding what this means, in particular when this expression is read in the context of the remainder of paragraph (c). He simply has to ask himself: "Is this a place designated for use by children?" If the answer is in the affirmative, then he is prohibited from entering the grounds of that place, and he commits an offence if, without reasonable excuse, he does so. In the event that he were to be prosecuted for such an offence, it would be for the prosecutor to prove beyond reasonable doubt that the place, the grounds of which he had entered, was a place designated for use by children. As already indicated, the defender's solicitor referred here to a public library, community centre, village hall and public park. All that needs to be said about these is that in reality a prosecutor would I think have an uphill task, to say the least, to prove that any of these was a place designated for use by children as opposed to the public generally. And in this context it is to be observed that the prohibition in paragraph (c) is against entering the grounds of the various types of place specified. So the defender would not in any event be in breach of paragraph (c) if he were able to, and did enter, for example a public library directly from a public street. But he would have to be careful in such a situation that he did not fall foul of the prohibition in paragraph (a).

[31] In summary, I am of the opinion that the terms of the order sought by the pursuer are sufficiently clear and neither the defender nor those responsible for enforcing the order should have any difficulty in practice in identifying what it is that the defender is prohibited by the order from doing. I have accordingly recalled only the final order made by the sheriff on 7 August 2009 leaving the interim order which was made on 9 July 2009 in place pending the sheriff's reconsideration of the matter.

[32] For the sake of completeness I should mention that after I had taken the case to avizandum for a second time the pursuer's solicitor sought to lodge copies of a complaint against the defender (and associated paperwork) containing a charge to which he had pleaded guilty subject to certain deletions at Dingwall Sheriff Court on 18 December 2009 and in respect of which he had subsequently been made the subject of a probation order on 21 January 2010. The charge narrated inter alia that the defender "being subject to a sexual offences prevention order granted at Inverness Sheriff Court on 9 July 2009 in terms of the Sexual Offences Act 2003 prohibiting him from approaching, speaking to or communicating in any way, directly or indirectly, or forming an association with any child under the age of 16 years did between 14 July 2009 and 31 October 2009" at named premises in Dingwall without reasonable excuse breach the terms of the order by taking certain steps in relation to a woman and her son aged 7 (both of whom were named in the complaint).

[33] The defender's solicitor opposed the lodging of these documents. I therefore fixed a hearing to allow the parties to address me on the issue. In the event I allowed the complaint and some, but not all, of the associated paperwork to be lodged. It was submitted for the pursuer that the fact that the defender had pleaded guilty to the charge (albeit in restricted terms) demonstrated that he had understood clearly what it was that he had been prohibited from doing in terms of the order which had been made against him. The defender's solicitor submitted that this did not follow at all, and that the defender might have been motivated to plead guilty by a variety of considerations unrelated to his understanding of the terms of the order. For present purposes I need only say that I have been able to conclude that the terms of the order sought are sufficiently clear without reference to the events at Dingwall Sheriff Court, and so my conclusion to this effect has not been influenced by the knowledge that the defender chose for whatever reason to plead guilty to the charge against him.

[34] Both parties moved for the expenses of the appeal. The defender has been successful in having the interlocutor of the sheriff dated 7 August 2009 recalled, but the pursuer's solicitor rightly pointed out that his success had been based upon a ground not foreshadowed in his original note of appeal and introduced only at the last minute before the original appeal hearing. Moreover the defender has not been successful in his opposition to the wording of the order sought in terms of the pursuer's crave. In the circumstances I should at best for the defender have been prepared to award him a proportion only of his expenses and since he is in receipt of legal aid I dare say that the practical effect of any such award would simply be to transfer funds from one section of the public purse to another. To seek to achieve this result seems to me to be a futile waste of time and expense, and in all circumstances I have decided that it would be appropriate to find no expenses due to or by either of the parties in respect of the appeal.