Lord Clarke

Lord Brodie

Lord Wheatley

[2013] HCJAC 52

Appeal No: XJ1110/12


delivered by LORD CLARKE










Appellant: Mitchell, Advocate

Respondent: O'Rourke AD; Crown Agent

10 May 2013

[1] This stated case relates to a charge brought against the appellant under section 3 of the Sexual Offences (Scotland) Act 2009. The charge in question was in the following terms:

"(001) On 6 June 2011 at the Frying Scotsman, Dyke Road, Glasgow you JOHN SCOTT did sexually assault GG an employee there in that you did enter a toilet where she was engaged in changing her clothes, look at her whilst she was in only underwear and seize the waistband of her underpants and utter comments about said underpants."

[2] The findings in fact as set out by the sheriff in the stated case are as follows:

"(1) As at 6 June 2011 the complainer, GG, was employed by the appellant within his Fish and Chip shop, the Frying Scotsman, Dyke Road, Glasgow. She had been working there since on or about March 2011. On 6 June 2011, she was due to start work at 4.30pm. She arrived early in order to get changed in time for her shift. She arrived at about 4.10pm. As was usual she entered the staff toilets to change into her uniform.

(2) The staff toilets are in the back of the shop. The door to the toilets could not be closed completely or locked. The complainer began to undress. The appellant entered the staff toilets and stood in front of the complainer. He was an arm's length away. At this point the complainer was wearing a pair of pants and a vest. The appellant made a comment about the complainer's underwear. The appellant moved forward to touch the button on the front of the complainer's pants but did not make physical contact with the complainer.

(3) The complainer did not consent to the appellant's attempt to touch her.

(4) The complainer was confused and frightened. The appellant apologised and walked away.

(5) The complainer finished her shift that evening. During her shift the appellant made a number of comments to the effect that he was in a better mood as a result of what had transpired in the staff toilets. At one point he indicated to the complainer that he was thinking of 'our little treat earlier on'.

(6) Two days later the complainer telephoned the appellant and advised him that she was handing in her notice. The day after the incident the complainer told her mother what happened. At that time she was very upset. She was distraught. Two days after the incident the complainer telephoned the appellant and advised him that she was handing in her notice. The complainer's mother and a friend then attended the appellant's shop. They returned the complainer's uniform and picked up the wages due to be paid to her."

[3] At the close of the Crown's case the sheriff upheld a submission in terms of section 160 of the Criminal Procedure (Scotland) Act 1995 that there was insufficient corroboration of a sexual assault by the appellant on the complainer. A further submission was made that there was insufficient evidence to support a conviction of an attempted sexual assault. That submission was repeated at the close of the trial but was rejected by the sheriff on both occasions. The sheriff found the appellant guilty of an amended charge, the amendment involving the deletion of the words "seize the waistband of" and substituting therefor "attempt to touch".

[4] It is a conspicuous feature of what the sheriff sets out in the stated case that she makes no detailed reference to the key provisions of the 2009 Act. This legislation is of relatively recent origin and has already been found to be not without its difficulties in its application. It is important that those charged with trying cases where charges under the legislation are laid, pay close attention to the precise terms of the legislation and their scope and meaning.

[5] As regards the present case, the following provisions of the 2009 Act are of significance.

[6] Section 3 provides:

"3. Sexual assault

(1) If a person ('A') -

(a) without another person ('B') consenting, and

(b) without any reasonable belief that B consents,

does any of the things mentioned in sub-section (2), then A commits an offence, to be known as the offence of sexual assault.

(2) Those things are that A -

(a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B,

(b) intentionally or recklessly touches B sexually,

(c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement or whether or not through clothing) with B,

(d) intentionally or recklessly ejaculates semen on to B,

(e) intentionally or recklessly emits urine or saliva on to B sexually ."

It is assumed that bringing in these proceedings the Crown set out to establish that the appellant had "intentionally or recklessly touched the complainer sexually".

[7] Section 60(2) of the Act provides that:

"(2) For the purposes of this Act -

(a) penetration, touching, or any other activity,

(b) a communication

(c) a manner of exposure, or

(d) a relationship,

is sexual if a reasonable person would, in all the circumstances of the case, consider it to be sexual."

[8] Counsel for the appellant's submissions in support of the appeal before this court were short and to the point. The sheriff, it was submitted, had found no corroboration of any touching by the appellant. It was an essential component of the charge laid that there should have been touching of a sexual character as defined. All that had been found by the sheriff was that the appellant had moved forward to touch the button on the front of the complainer's pants and the sheriff expressly found that he "did not make physical contact with the complainer". What the sheriff's findings, therefore, amounted, to if taken at their highest, was a simple assault. In Gordon Criminal Law (3rd edition) at para. 6.03 it is stated with regard to inchoate crimes:

"the question in every case in (sic) therefore, 'Does what the accused did amount to an attempted crime?' and in practice this question becomes 'Has the accused reached the state of attempt, has he gone far enough in the prosecution of his intention to have committed and attempted crime."

Later on in the same work at para. 29.02 it is stated: "The distinction between assault and attempted assault is very indistinct, if, indeed attempted assault exists at all".

[9] In the stated case there is no finding by the court to the effect that the appellant had been attempting to touch the complainer sexually as defined in terms of the Act. Moreover, while the sheriff found that there was no corroborated evidence supportive of the existence of a sexual assault, the sheriff gives no reasoned indication as to how she arrived at the conclusion that both the actus reus and mens rea had been established in relation to an attempt to commit a sexual assault. In Petrovich v Jessop 1990 SCCR 1, the appellant was convicted of shoplifting. When seen by the police he admitted taking the goods without paying for them and explained that he had been under stress. A police officer gave evidence that the appellant's behaviour seemed to him to be consistent with his explanation. The appellant appealed to the High Court by stated case, and in his note the magistrate stated only that he had no hesitation in accepting the prosecution case of intention to steal and did not believe the version given by the appellant in his evidence, which was in line with what he had said to the police.

[10] In the present case when the appellant was interviewed by the police he said, inter alia, "As I said, I might have went forward to touch the button but I didn't actually touch. Do you know what I mean?" The interviewing officer then said: "Why did you go forward to touch the button?" the appellant replied:

"It was just because of the way they were. It was a surreal situation, to find out if it was a real button. It wisnae a real button but I have no other explanation than that."

[11] In Petrovich Lord Wylie, in giving the judgment of the court said at page 2:

"The situation accordingly was that there were findings for which an inference could be drawn, that when the appellant left the shop he intended not to pay for the two books which he had taken; and that he, in effect, stole these two books. Though these findings are capable of supporting such an inference, it was, of course for the trial judge, in this case the magistrate, to decide whether or not to draw the inference; but it was necessary for him to consider and to assess all the relevant evidence and to determine whether or not the inference of guilt was one which the evidence pointed to beyond all reasonable doubt. Against the drawing of that inference, there was the explanation that the appellant had simply forgotten to pay, possibly because of his recent stress and loss of sleep, an explanation which was tendered at the time and which was apparently given some credence by the police sergeant who interviewed the accused immediately afterwards. In his note, the magistrate deals with the issue in an unsatisfactory and perfunctory manner. He simply states:

"After consideration of all the evidence I have no hesitation in accepting the prosecution case that the appellant had deliberately intended to steal the said books and I did not believe the version given by the appellant in his evidence.

He gives no indication as to why he drew the inference of guilt and rejected the alternative. To state that one has "no hesitation" in arriving at a conclusion does nothing to explain the processes which have resulted in the conclusion. Although the question as to whether or not a particular inference has to be drawn from a set of facts is essentially one for the trial judge, he must have stateable and defensible reasons for drawing the inference he does draw, given the standard of proof required. We would have expected the magistrate in this instance to elaborate on the reasons why he drew the inference that the appellant had the mens rea necessary to constitute the offence. He simply and without explanation rejects the version given by the appellant, notwithstanding the degree of support which it was apparently given by the police sergeant. We have come to the view that it was not satisfactory in a situation such as this for a presiding magistrate to deal with the issue in so perfunctory a manner. We consider it important that in all these cases justice must not only be done but must be seen to be done. We are not satisfied that the manner in which the magistrate dealt with this case satisfactorily indicated that he had applied his mind with sufficient care to the real issue involved. In these circumstances, we shall quash the conviction."

[12] In the present case, the sheriff says in the stated case: "That the attempt to touch was sexual can, in my view, be inferred from the facts and circumstances." She does not however, go on to explain why this was so and, therefore, does not provide "stateable and defensible reasons for drawing the inference of guilt of an attempt at a sexual assault". That was particularly important in the present case where the sheriff, was not satisfied that the offence, as charged, had been proved. By section 50(1) of the 2009 Act it is provided:

"(1) If, in a trial -


(b) In summary proceedings for an offence mentioned in the first column of (schedule 3) the court is not satisfied that the accused committed the offence charged but is satisfied that the accused committed the alternative offence (or as the case may be one of the alternative offences) mentioned in the third column, it may,

acquit the accused of the charge but find the accused guilty of the alternative offence in respect of which so satisfied (the accused then being liable to be punished accordingly)"

[13] Included in schedule 3, as one of the alternative offences to sexual assault, under section 3 is "assault at common law". The appellant's position, in the present case, in our judgement, was consistent with simple assault at common law which was, as has been noted, virtually conceded by his counsel before us. The sheriff in our opinion should have made it clear why she chose to convict of the offence she did as opposed to convicting of an assault at common law. The lack of reasons in this case by the sheriff means, following the approach of the court in Petrovich, that in the circumstances the conviction requires to be quashed.

[14] We answer the question posed in the stated case as follows:

(1) In the affirmative.

(2) In the negative.