APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Bracadale Lord Osborne	[2012] HCJAC 25 XJ572/10 OPINION OF THE LORD JUSTICE CLERK In the Appeal by JAMES GERALD PATRICK HEATHERALL Appellant; against PROCURATOR FISCAL, EDINBURGH Respondent: _______

For the Appellant: Shead, Lenehan; Beaumont & Co, Edinburgh

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

15 February 2012

Introduction

[1] On 26 April 2010 at Edinburgh sheriff court the appellant appeared on complaint on the following charge:

"On 1st August 2009 at High Street, Penicuik you ... did assault [complainer] ... and did expose your naked penis and thereafter seize her by the body and repeatedly thrust your naked penis against her."

The Crown accepted his plea of guilty to an amended charge of breach of the peace by exposing his naked penis to the complainer.

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

The disposal appealed against

[3] The sheriff fined the appellant £225. That sentence 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. The effect of that determination is that the appellant is subject to the notification requirements of the 2003 Act for a period of five years.

The appellant

[4] The appellant was born in 1988. He has previous convictions for public order offences and assault, none of which was sexual in nature.

The circumstances

[5] On the agreed Crown narrative, the incident occurred around closing time outside a public house in the centre of Penicuik. As the complainer, aged 28, was leaving the premises, she saw the appellant. He had his penis exposed. He was holding it in both hands towards her. She was embarrassed. To try to embarrass the appellant and make him stop, she made a comment about his penis. The appellant continued to expose himself and said to her "What are you going to do?" She complained to the police. They detained the appellant shortly afterwards.

[6] The plea in mitigation was to the effect that the appellant had been very drunk. He did not know the complainer. He had been with friends and had exposed his penis to them as a joke. There had been no sexual element in his behaviour.

The sheriff's reasons

[7] The sheriff decided that the appellant's conduct had displayed a significant sexual aspect. It had been directed towards a member of the public who was not known to him. He had persisted in it after the complainer had rebuked him.

The appeal

[8] The appellant lodged a note of appeal to the effect that there had been no significant sexual aspect to the charge to which he pled guilty. He then lodged a devolution minute, a bill of suspension and additional grounds of appeal. He avers (a) that the relevant provisions of the 2003 Act violated his rights under articles 6 and 8 of the European Convention on Human Rights and that the Lord Advocate's prosecution of it was therefore ultra vires; and (b) that in terms of section 57(2) of the Scotland Act 1998 the Sexual Offences Act 2003 (Commencement) (Scotland) Order 2004 itself was ultra vires and therefore that the sheriff's order was incompetent.

Submissions for the appellant

[9] Counsel for the appellant submitted that article 6(3)(a) gave the appellant the right to be informed in detail of the nature of the accusations against him, which included their legal characterisation (Pelissier v France Application no 25444/94, 25 March 1999). The Crown was obliged to give him notice that his conduct might be regarded as having a significant sexual aspect. Its failure to do so violated his rights under articles 6(1) and (3)(a). The scheme of the Act, by which offenders were subject to the notification requirements with no possibility of review, represented a disproportionate interference with the appellant's rights under article 8. The Supreme Court's reasoning in R(F) v Secretary of State for Justice ([2011] 1 AC 331) applied by extension to offenders who were subject to the notification requirements for a finite period. In prosecuting the appellant, accepting the guilty plea and impliedly moving for sentence the Lord Advocate violated the appellant's Convention rights. For the same reason the 2004 Order itself was also ultra vires. The sheriff's order was incompetent. On a proper construction of paragraph 60, the sheriff could not properly have held that the appellant's conduct had a significant sexual aspect. The word "significant" connoted a threshold to ensure that persons convicted were not too readily treated as sex offenders.

Submissions for the Crown

[10] The advocate depute submitted that the appellant had been given fair notice by the wording of the libel in its unamended form. His agent had the opportunity to make submissions on whether the 2003 Act applied. The sheriff had been entitled to conclude that there had been a significant sexual aspect to the appellant's conduct.

Conclusions

[11] The Crown chose not to charge the appellant with public indecency. In its original form, the complaint set out an unmistakable charge of indecent assault. Conviction on that libel would automatically have resulted in notification under the 2003 Act (Sch. 3, para 40).

[12] The present question arises only because of the Crown's acceptance of the plea to breach of the peace. That greatly reduced the seriousness of the charge. It also had the consequence that notification was competent only if paragraph 60 of Schedule 3 was made out. In determining that it did, the sheriff erred, in my view.

[13] In this case the incident seems to have been caused by drink rather than by sexual urges. Although the appellant exposed his penis, there was no sexual conversation of any kind. In my opinion this was a straightforward breach of the peace on the part of a person who was drunk. It appears that the Crown did not move the sheriff to apply paragraph 60. That was the correct position, in my view. If there was a sexual element in the appellant's behaviour, that element was not "significant" in the context of paragraph 60.

Sexual Offences (Scotland) Act 2009

[14] With effect from 1 December 2010, section 8 of the Sexual Offences (Scotland) Act 2009 has created a new offence of sexual exposure. The section provides as follows:

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

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

(b) without any reasonable belief that B consents,

intentionally and for a purpose mentioned in subsection (2), exposes A's genitals in a sexual manner to B with the intention that B will see them, then A commits an offence, to be known as the offence of sexual exposure.

(2) The purposes are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B."

The manner of exposure is sexual if a reasonable person, in all the circumstances, would consider it so (s.60(2)).

[15] Schedule 3 to the 2003 Act applies the notification requirements to a person convicted of this offence if -

"(a) the offender, in respect of the offence, is or has been-

(i) sentenced to a term of imprisonment, or

(ii) admitted to a hospital, or

(b) the offender was 18 or over and the victim was under 18." (para 59L).

[16] These provisions were not in force at the date of the conviction in this case.

[17] Section 8 of the 2009 Act is a specific list offence in the sense in which I have used that expression in Hay v HM Adv (supra, at para [5]). If the Crown were to consider, in a case of this kind, that the exposure was sexual in nature, it could avoid the issue that has arisen in this appeal by charging the accused under section 8.

Disposal

[18] I propose to your Lordships that we should allow the appeal in this case.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Bracadale Lord Osborne	[2012] HCJAC 25 XJ572/10 OPINION OF LORD BRACADALE In the Appeal by JAMES GERALD PATRICK HEATHERALL Appellant; against PROCURATOR FISCAL, EDINBURGH Respondent: _______

For the Appellant: Shead, Lenehan; Beaumont & Co, Edinburgh

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

15 February 2012

[19] 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.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Bracadale Lord Osborne	[2012] HCJAC 25 XJ572/10 OPINION OF LORD OSBORNE In the Appeal by JAMES GERALD PATRICK HEATHERALL Appellant; against PROCURATOR FISCAL, EDINBURGH Respondent: _______

For the Appellant: Shead, Lenehan; Beaumont & Co, Edinburgh

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

15 February 2012

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