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The Chief Constable Northern Constabulary ?v- A ? Inverness Sheriff Court, 25 May 2010


This appeal to the Sheriff Principal related to a summary application seeking a Sexual Offences Prevention Order against the Defender/Appellant in terms of s104 of the Sexual Offences Act 2003. At an earlier hearing in August 2009, the Defender had not appeared and the Sheriff had decided that he was entitled to rely on the execution of service by two police officers as being ex facie valid and granted an order under s104 against the Defender. The Defender appealed against that decision and raised a preliminary question regarding an irregularity in the citation.

An interim order had been granted at a pre service hearing in July 2009 and two police officers had served a copy of the interim order on the Defender. This had included a copy of the whole of the Sheriff's Order, dealing with the interim order and also granting warrant to cite the Defender. The Rules in relation to summary applications permit citation by post or by a Sheriff Officer (Rules 2.10 and 2.11 in Part II of Chapter 2 of the Summary Application and Appeals etc Rules 1999). The Defender pointed out that the expression “Sheriff Officer” did not include a Police Officer and there was no provision in the Rules for service of a summary application by a Police Officer. Although it had been competent for Police Officers to give him a copy of the interim order, and this had incorporated a copy of the warrant of citation, that did not satisfy the appropriate Rules. The citation should have been in a prescribed form (Form 3), which contains important advice for the Defender about what action he should take in response to the citation and the possible consequences of doing nothing. The Sheriff at first instance had been wrong to conclude that the execution of service by the police officers was ex facie valid. The Pursuer/Respondent did not accept that service had been defective. Although the Defender had not received Form 3, he had received a copy of the warrant of citation with the interim order and that had given him fair notice of the subsequent hearing. The Sheriff Principal decided that the citation had been “plainly irregular”. The Pursuer then moved the Sheriff Principal to relieve him of the consequences of that failure in terms of rule 2.3(1) of the 1999 Rules. The procedure followed in this case was the same procedure that the Police had followed since the 2003 Act had come into force. The Defender opposed this motion. It was not simply the case that the wrong form had been used. Service had been effected by Police Officers, rather than by Sheriff Officers. The Sheriff Principal did not consider it appropriate to excuse the Pursuer's failure to comply with the Rules. He was influenced by the fact that the procedure adopted in this case had been used for many years. This meant that the Police had consciously disregarded the rules of procedure over a lengthy period. The Pursuer then argued that the Defender's appearance in the action had remedied any defect in the citation by virtue of Rule 2.17 (1). This Rule indicated that a party who appeared could not object to the regularity of service and his appearance cured any defect in service. The Sheriff Principal made reference to the case of Cairney –v- Bullock 1993, SCLR 901 in which the proper construction of Rule 18 (1) of the Ordinary Cause Rules 1983 was considered. It was 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). A distinction was drawn between a party entering appearance in an action, for example by completing a Notice of Intention to Defend, and a party who “appears” in the sense that they raise an objection to the validity of citation. The critical question was what was meant by the words “appear” and “appearance” in Rule 2.17(1).