Threatening behaviour libel gave adequate notice of significant sexual offence, appeal judges rule

The appellant claimed that he had not been given sufficient notice that there was a “significant sexual aspect” to the offences, such that would trigger the notification requirements of the Sexual Offences Act 2003, but the High Court of Justiciary refused the appeal.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Glennie, heard that the appellant Paul McFadyen was convicted of two charges under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

‘Threatening behaviour’

Charge (2) was that he behaved in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that he did attempt to entice B, who was aged 18, into his car; and charge (3) was that he behaved in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that he did follow A, aged 14, entice her into his car, ask for her name and telephone number and repeatedly ask her to come to his home address.

The charges had appeared on a complaint which also libelled as charge (1) an alleged sexual assault by touching of A by placing his hand on her thigh, of which the appellant was acquitted. 

At the conclusion of the case the presiding sheriff invited submissions from the prosecution and defence on the question whether there was a significant sexual element to the offences, such that the notification requirements of the 2003 Act might apply. 

The notification requirements apply to a list of specific, scheduled sexual offences, but under paragraph 60 of schedule 3 they also apply on conviction of an otherwise non-scheduled offence in circumstances where: “the court, in imposing sentence or otherwise disposing of the case, determines for the purposes of this paragraph that there was a significant sexual aspect to the offender’s behaviour in committing the offence”.

The procurator fiscal depute submitted that there was a significant sexual aspect to the offences of which the appellant had been convicted, while the defence solicitor submitted that any sexual element was restricted to charges (1) - of which the appellant was acquitted - and (3), but the sheriff concluded that there was a significant sexual aspect to the conduct of which the appellant was convicted and that the notification requirements were triggered.

‘No adequate notice’

McFadyen appealed against his conviction and sentence, but the Sheriff Appeal Court ruled that the sheriff had been entitled to reach this conclusion and refused the appeal.

The appellant was given leave to appeal against that decision on the ground only that there had not been adequate notice that the conduct was such as might trigger the notification requirements.

Under reference to paragraph 40 and 41 of Hay v HM Advocate 2014 JC 19, it was submitted that if the Crown contended that there was a significant sexual element in an offence then that assertion required to be narrated in the libel, as did the facts and circumstances from which that aspect was to be inferred.

It was argued that what was required was a narration of facts and circumstances which could reasonably be said to allow the inference that there was a significant sexual element to the conduct. 

It was submitted that there had been “no adequate notice” in this case and that the court had not been entitled to proceed to consider that question. 

‘No miscarriage of justice’

Refusing the appeal, the judges observed that the in Hay, the court had recognised that a court may conclude that there is a significant sexual aspect to behaviour either ex proprio motu or where the matter only truly appeared in that light after trial or at sentencing.

Delivering the opinion of the court, the Lord Justice Clerk said: “We cannot therefore read from para 41 of Hay the assertion that a significant sexual element may be established only where direct assertion of that has been made in the libel. This may indeed be the clearest and safest way for the Crown to give notice of its intention when libelling non-scheduled offences. 

“However, in our view Hay is also authority for the proposition that it would constitute sufficient notice for the terms of the libel as narrated to contain elements from which the applicability of paragraph 60 may clearly and reasonably be inferred. 

“In our view the two critical issues which arise from Hay are that the circumstances of the libel must set out facts and circumstances from which a significant sexual aspect of the case may be inferred; and that in all cases where the issue arises at a hearing the sentencing judge must give the defence a full opportunity to make submissions on the matter.”

Lady Dorrian added: “The only issue which arises is whether there has been a failure to give the notice required by Hay and whether there had as a consequence been a miscarriage of justice.

“The first point of significance is that this is not a case where the libel contained only non-scheduled offences. The first charge on the complaint related to a scheduled offence and in our view it cannot be said that the complaint did not give adequate notice that notification may be an issue in respect of any of the charges. 

“The behaviour involved in charges 2 and 3 involved an attempt by a middle aged man to entice an 18-year-old young woman into his car whilst she was on her way to work and following, and enticing into his vehicle, a 14-year-old child, asking her name and telephone number and repeatedly asking her to come to his home address. The nature of this conduct together with the terms of charge 1, provided sufficient notice.”

The judges also noted that it was the sheriff who raised the issue of whether the conduct contained a significant sexual element, in which case the obligation of the court was to invite submissions on the point, and to allow an adjournment for further consideration if appropriate. 

The court concluded: “In this case the defence was given a full opportunity to address the court and did not dispute that charge 3 at least contained a significant sexual element. The requirements identified in Hay for proceeding in this way were thus fulfilled.

“In any event, even if we had been satisfied that there had been an insufficiency of notice, we would not have been able to conclude that there had been a miscarriage of justice. 

“The appellant’s solicitor was given the opportunity to make representations about the issue, and did not complain of any lack of notice or suggest that the possibility that the notification requirements might apply came as a surprise.”