Sheriff Appeal Court substitutes breach of the peace conviction for man’s sexual offence one

About this case:

• Citation:
  [2022] SAC (Crim) 7
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff A MacFadyen

Faisal Aziz was originally convicted under section 7(1) of the Sexual Offences (Scotland) Act 2009 of making a sexual communication for the purpose of obtaining sexual gratification to complainers TM and TE, aged 18 and 21 respectively. He appealed by stated case on the basis that the sheriff had erred in rejecting his no case to answer submission.

The appeal was heard by Sheriffs Principal Marysia Lewis and Nigel Ross along with Appeal Sheriff Alasdair MacFadyen. Hay, advocate, appeared for the appellant and Edwards QC for the Crown.

Inference drawn

The appellant had been driving a private hire vehicle in Edinburgh City Centre when he was hailed by the two complainers, who thought his vehicle was a taxi. The complainers, who had both consumed alcohol and required to get home, asked the appellant if he could take them home but explained they did not have any money. The appellant asked them “what else can you offer?” and when asked what he meant by that he replied “sex”.

Complainer TM stated that she felt unsafe and uncomfortable with the appellant’s comments and TE said she was frightened. The defence made a no case to answer submission in terms of section 160 of the Criminal Procedure (Scotland) Act 1995, which was opposed by the Crown. Having heard submissions from the appellant and the Crown, the sheriff found that all the component parts of the charge had been satisfied if the prosecution evidence was to be believed.

The sheriff considered that that an inference could be drawn that the appellant’s intention had been to obtain immediate sexual gratification by asking for sex and seeing the reactions of the complainers, or to obtain deferred sexual gratification by later engaging in sexual activity with either or both of the complainers. The sheriff subsequently convicted the appellant and imposed a community payback order, as well as making the appellant subject to the notification requirements under part 2 of the Sexual Offences Act 2003.

On appeal, counsel for the appellant submitted that the making of the communication of itself was not sufficient to allow the drawing of an inference that he made it for the purpose of sexual gratification. The section of the 2009 Act had been designed to criminalise communications which were completed acts with a consequence that the victim was involved in an invasion of their sexual autonomy.

It was conceded that the remark was capable of amounting to a breach of the peace by the appellant’s counsel. However, in that event it was submitted that no notification requirement under the 2009 Act ought to be imposed.

Short and unspecific

Delivering the opinion of the court, Sheriff MacFadyen began: “Looking at [the 2009 Act] and the sheriff’s findings in fact, there was no dispute that the appellant had intentionally made a verbal communication, that a reasonable person might consider it to have been sexual, or that it had been made without the consent of the complainers or a reasonable belief that they had consented. The issue was whether, as required by section 49 it could be reasonably inferred that the appellant made the communication for the purpose of obtaining sexual gratification, either immediately or at some later stage, or for the purpose of humiliating, distressing or alarming one or both of the complainers.”

He continued: “In the instant case the exchange was short and unspecific. Importantly, there was no evidence justifying the drawing of a reasonable inference that the appellant obtained sexual gratification from the making of the communication. There was no evidence justifying such an inference that he had the purpose of humiliating, distressing or alarming the complainers. While any sexual gratification may be deferred to a later time, it is still necessary, before convicting under section 7(1), to establish that such gratification, or such intent, was directly connected to the making of the remarks.”

Noting that hoping to be offered sexual favours was different from obtaining gratification, the sheriff went on to say: “In our view, in order to justify a conviction under section 7, the sexual gratification must be intrinsically connected to the making of the communication. This case turns on the extremely limited nature of what passed from the appellant to the complainers. The making of the remark did not invade the sexual autonomy of either of the complainers.”

On the appropriate disposal, the sheriff concluded: “Parties were agreed that the facts found proved by the sheriff amounted to the commission of the offence of breach of the peace, that is to say that the appellant’s conduct when interacting with the complainers had been severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. We have no difficulty in agreeing that to be the case. In that situation the sheriff was still correct to repel the submission under section 160, because in terms of section 160(1)(b) the appellant could have been convicted on another offence under the complaint.”

He added: “The appellant’s behaviour, while alarming, did not disclose an underlying sexual disorder or deviance from which society should be protected. In that sense therefore there was not a significant sexual aspect to the offender’s behaviour in committing the offence.”

Accordingly, the appellant was not ordered to be subject to the 2003 Act notification requirements.