For the Appellant: A Brown QC; Drummond Miller, Edinburgh

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

15 February 2012

Introduction

[1] On 11 November 2009 at Elgin Sheriff Court the appellant was convicted of the following charge:

"On various occasions on 5th October 2009 at 211 High Street, Elgin, Moray you ... did conduct yourself in a disorderly manner repeatedly handle your private parts over your clothing, repeatedly rub your private parts over your clothing and commit a breach of the peace.

You ... did commit this offence while on bail, having been granted bail on 2 April 2009 at Elgin sheriff court."

[2] This appeal was heard with the appeals in Hay v HM Adv [2012 HCJAC 28].

The facts

[3] On the afternoon of 5 October 2009 police officers with due authorisation undertook surveillance of the appellant by cctv. They saw him from time to time emerge from the Victoria Bar in the High Street and stand in the doorway smoking cigarettes. While standing there he repeatedly rubbed his genital area over his trousers. At one point the outline of his penis was visible through his trousers. The sheriff found it proved that the appellant was masturbating. For part of the time a young woman was standing within two or three feet of the appellant and people passed by on the pavement, including a group of teenagers. When three boys aged about ten passed by, the appellant seemed to watch them as he rubbed himself. None of the members of the public appeared to notice the appellant or what he was doing, although it was evident from his actions that he was engaged in sexual activity.

The sheriff's decision

[4] The sheriff took the view that the offence was clearly sexually motivated, which meant, in his view, that the offence had a significant sexual element. He regarded the offence as serious. The behaviour was gross and had been committed while members of the public, including children, passed by. The appellant's record included convictions for indecency and for breaching bail. The offence had been committed while he was on bail. A substantial prison sentence was required.

[5] The sheriff sentenced the appellant to 13 months' imprisonment, one month of which was for the bail aggravation. He 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 determined that the appellant would be subject to the notification requirements of the Act for ten years. We are concerned only with the order for notification.

The appellant

[6] The appellant was born in 1944. He has a lengthy criminal record. Between 1973 and 1987 he was convicted of lewd and libidinous practices on four occasions, for three of which he received sentences of three months' imprisonment. In 1996 at the High Court at Inverness he was convicted under section 4(1) of the Sexual Offences (Scotland) Act 1976 for having had sexual intercourse with a girl of or above the age of 13 and under the age of 16 and was sentenced to 15 months imprisonment. In 1998 he was again convicted of lewd and libidinous practices and sentenced to three months' imprisonment. In 2000 he was convicted of shameless indecency and imprisoned for 76 days. In 2005 he was convicted on indictment at Aberdeen sheriff court of lewd, indecent and libidinous practices. He received an extended sentence consisting of a custodial term [j1] of 21 months imprisonment and an extension period of 24 months. The effect of his previous convictions is that he is already subject to the notification requirements of the 2003 Act until 2015 (2003 Act s. 82).

Submissions for the appellant

[7] Counsel for the appellant submitted that the sentence was excessive. The appellant had been convicted of a simple breach of the peace, the evidence for which had been derived from police officers and cctv footage. There was no evidence that passers-by had been distressed, or had even been aware of what was happening. The appellant had already served the equivalent of 11 months in custody. Counsel said that it was difficult to assert that there was no significant sexual aspect in the appellant's behaviour.

Submissions for the Crown

[8] 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. He had had the opportunity to make submissions on this before the sheriff made his determination under paragraph 60.

Conclusions and disposal

[9] The first question[j2] is whether the sentence was excessive. This was a single breach of the peace. There is a finding in fact that the appellant was seen to be masturbating. No-one was alarmed, but that is not the test. In view of the appellant's previous criminal record, I consider that the sentence was appropriate.

[10] The second question is whether there was a significant sexual aspect to this offence. On this question the appellant's previous convictions are irrelevant, for the reasons that I have given in Hay v HM Adv (supra). In my view the terms of the libel impliedly gave notice of the possible application of paragraph 60. On the evidence that I have summarised, the appellant's behaviour was entirely sexual in nature. In my opinion, the sheriff was entitled to conclude that the requirements of paragraph 60 (supra) were made out.

[11] I propose to your Lordships that we should refuse this appeal.

For the Appellant: A Brown QC; Drummond Miller, Edinburgh

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

15 February 2012

[12] 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: A Brown QC; Drummond Miller, Edinburgh

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

15 February 2012

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