For the appellant: J Keenan sol adv, S Collins sol adv; Capital Defence, Edinburgh

For the Crown: Stewart QC AD; McGuire; Crown Agent

15 February 2012

Introduction

[1] On 6 August 2010 at Falkirk sheriff court the appellant pled guilty on complaint to the following charge, as amended.

"On 10th April 2009 at a point between Polmont Railway Station and Larbert Railway Station, whilst travelling on a First Scotrail Train Service between said Stations you ... did assault [the complainer] ... and did kiss her on the lips."

[2] This appeal was one of a those heard with Hay v HM Adv [2012 HCJAC 28].

The sentence appealed against
[3] On 21 October 2010 the sheriff imposed a probation order for twelve months. That is not appealed against. The sheriff also determined, in terms of paragraph 60 of Schedule 3 to the Sexual Offences Act 2003, that there was a significant sexual aspect to the appellant's behaviour in committing the offence. He therefore made the appellant subject to the notification requirements of the 2003 Act. Since the disposal in this case was probation, the notification period was the duration of the probation order (2003 Act s. 82(1), Table).

The appellant

[4] The appellant was aged 25 at the time of the offence. He had no relevant previous convictions.

The circumstances

[5] The offence was committed after 11pm. The complainer was a fifteen year old girl. She was travelling alone. She had boarded the train at Polmont. The appellant and two male companions boarded at Falkirk. They engaged the complainer in conversation. Because they smelled of alcohol the complainer was concerned and asked to be left alone. She stood up to move away, but the three men joined her. The appellant put his hand round her back. The men ushered her along the corridor. The appellant then lent over and kissed her on the lips. The complainer tried to push the appellant away. One of the other men intervened and pushed him back, saying "you cannae just go about doing that to folk." The complainer remained in the train corridor for the remainder of her journey. When she got home her mother saw that she was distressed.

[6] The appellant's agent submitted that there had not been a significant sexual aspect to the appellant's behaviour. The appellant had been heavily intoxicated. The complainer, who said she was aged seventeen, had given him a drink of alcohol. He kissed her as a gesture of thanks. He had not had any sexual motive. The procurator fiscal did not challenge this account of the incident.

The sheriff's decision

[7] The sheriff found that there had been a significant sexual aspect because (i) the assault was a kiss on the lips; (ii) the complainer was a lone and vulnerable young female; (iii) she had asked to be left alone at an early stage; (iv) she had subsequently been distressed; and (v) the actions of the appellant's companion in pushing him away and rebuking him indicated that an objective onlooker would have viewed the kiss as sexually motivated (Report, para 7).

[8] The sheriff did not accept that the appellant's kiss was a gesture of thanks. He did not comment specifically on whether he accepted that the complainer said that she was seventeen years old, or whether she had given the appellant alcohol (ibid, Para 6).

Submissions for the appellant

[9] The solicitor advocate for the appellant submitted that the plea had been tendered on the basis that there had been no sexual element in the appellant's conduct. The Crown's position had been neutral. The sheriff should not have formed his own view on the sexual aspect without allowing the appellant the opportunity of a proof on the point. If there was a sexual aspect, it was not a significant one. There had been a single kiss that was not prolonged. Quoad ultra he adopted the submissions for the appellant in Hay v HM Adv (supra).

Submissions for the Crown

[10] The advocate depute submitted that the sheriff had been entitled to conclude that the offence had a substantial sexual aspect. The libel gave the appellant fair notice of that. His agent had the opportunity to make submissions on the point before the sheriff made his determination.

Conclusions

The effect of the plea

[11] The amended, and greatly reduced, libel to which the appellant pled guilty was a charge of assault. Although the point is not raised as a ground of appeal, I consider, for the reasons that I gave in Hay v HM Adv (supra) that the Crown did not suggest in the terms of the complaint that this was intended to be a charge of indecent assault to which paragraph 40 would apply. That is confirmed by the neutral stance taken by the procurator fiscal depute when he related the Crown narrative. However, the question of the applicability of paragraph 60 was clearly in issue.

Opportunity to make submissions on paragraph 60

[12] I do not accept the suggestion that the appellant did not have an opportunity to make submissions on this question. From the narratives of procedure and the minutes of the court it is apparent that the appellant's agent was given an adequate opportunity to deal with the question of paragraph 60 and that he did so.

Paragraph 60

[13] Since the Crown did not challenge the defence account of the incident, or insist on a proof in mitigation, the sheriff should have considered that issue on the basis that the defence account was not disputed (Breslin v HM Adv, 1997 JC 49). In these circumstances the sheriff should have proceeded on the view that there was a sexual aspect to the appellant's behaviour; but that it was caused by drink rather than by sexual urges. Having regard to the nature and purpose of registration, I do not consider that, in the whole context of the 2003 Act, the sexual aspect can properly be described as "significant."

Disposal
[14] I propose to your Lordships that we should sustain the appeal to the extent of quashing (a) the finding made by the sheriff under paragraph 60 of Schedule 3 to the 2003 Act and (b) the sheriff's notification of the appellant.

For the appellant: J Keenan sol adv, S Collins sol adv; Capital Defence, Edinburgh

For the Crown: Stewart QC AD; McGuire; Crown Agent

15 February 2012

[14] For the reasons given by your Lordship in the chair, I agree that the disposal of this appeal should be as proposed by your Lordship.

For the appellant: J Keenan sol adv, S Collins sol adv; Capital Defence, Edinburgh

For the Crown: Stewart QC AD; McGuire; Crown Agent

15 February 2012

[15] I agree with the Opinion of your Lordship in the Chair and have nothing further to add.