For the Appellant: A Brown QC; Capital Defence, Edinburgh

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

15 February 2012

Introduction

[1] On 29 March 2010 at Dunfermline sheriff court the appellant was convicted after trial on summary complaint on the following charge:

"Between 21st October 2009 and 24th October 2009 at [locus in Dunfermline] you ... did conduct yourself in a disorderly manner repeatedly put your arms around [first complainer] ... and [second complainer] ... repeatedly cuddle them and pull their heads to your chest and touch their bodies and commit a breach of the peace."

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

The disposal appealed against

[3] On 6 May 2010 the sheriff fined the appellant £600, against which no appeal is taken. 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, and that accordingly the appellant would be subject to the notification requirements of that Act for a period of five years.

The appellant

[4] The appellant was born in Turkey in 1969. He moved to Scotland in 2000. He has no relevant previous record.

The circumstances

[5] The appellant ran a takeaway pizza shop in Dunfermline. At the material time the first and second complainers, aged 13 and 15 respectively, were helping out in the shop at night. The appellant repeatedly cuddled them. He approached them from behind, put his hands around their stomachs and lifted them off their feet. He said to the 13-year old complainer "You're really hot" and frequently touched her hips and shoulders. He pulled the head of the 15-year old complainer onto his chest. On another occasion he wrapped a scarf around her and pulled her towards him, preventing her from drawing away when she tried to do so. The complainers felt uncomfortable and repeatedly told him not to cuddle them. This behaviour occurred in the presence of a male employee, but in the absence of customers. One of the girls told her mother about the appellant's behaviour, and the police were contacted. The appellant's evidence, which the sheriff disbelieved, was that he had had no physical contact with the girls.

The sheriff's decision

[6] The following are the sheriff's reasons for his determination under paragraph 60:

"I do not regard the issue as one for my discretion; instead the issue is one of law and, in particular, statutory construction. For the reasons I set out in ... [Wylie v M 2009 SLT (Sh Ct) 18] I considered that I had to decide whether the appellant's conduct was important enough to merit attention as indicating a sexual disorder or deviance from which society is entitled to be protected. I took the view that it was - on the basis that it consisted of unwanted, physical and sexually motivated approaches by a 40 year old male to two girls aged 13 and 15 years."

The appeal

[7] The appellant has lodged a devolution minute in which he contends, with reference to the bills of suspension and advocation in the related appeals in Hay v HM Adv (supra) and Heatherall v PF Edinburgh [2012 HCJAC 25] at his rights under articles 6(1) and 8 of the Convention have been violated.

Submissions for the appellant

[8] Senior counsel for the appellant adopted his submissions on fair notice and proportionality made in Hay v HM Adv. The sheriff had erred in his determination that there was a significant sexual aspect. He had failed adequately to weigh the factors. The appellant had no analogous previous convictions. He had plainly been more forward than a Scottish person would have been. He had behaved inappropriately towards the girls. They had continued to work in the shop despite his conduct. The incidents had taken place in public when others were present. Nothing had happened when the appellant was alone with the girls. The report showed that he was hard-working with stable family relationships. He was assessed as being at low risk of re-conviction. The sheriff had decided that a monetary penalty was sufficient. The remark "You're really hot" could signify a number of things, such as teasing or banter.

Submissions for the Crown

[9] The advocate depute submitted that the complaint had given the appellant fair notice of the possibility of a determination under paragraph 60. His solicitors had had the opportunity to make submissions on whether the 2003 Act applied. The sheriff had been entitled to find that there had been a significant sexual aspect to the appellant's conduct.

Conclusions and disposal

[10] In this case the complaint gave the appellant and his advisers unmistakeable notice of the possibility that paragraph 60 (supra) might apply. I do not consider that the appellant's Convention rights have been infringed in this respect.

[11] The conduct of the appellant was persistent and repeated. It involved, inter alia, his closing the kitchen door when he and the second complainer were alone in the kitchen. His initial comment to the first complainer, namely "You're hot," in my view points strongly to there being a significant sexual aspect in his behaviour. It is also relevant that the girls were aged 15 and 13. In my opinion, this was a serious offence with a serious sexual aspect.

[12] I propose to your Lordships that we should refuse the appeal.

For the Appellant: A Brown QC; Capital Defence, Edinburgh

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

15 February 2012

[13] 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; Capital Defence, Edinburgh

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

15 February 2012

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