APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Bracadale Lord Osborne	[2012] HCJAC 27 XJ1224/09 OPINION OF THE LORD JUSTICE CLERK In the Appeal by STUART THOMPSON Appellant; against PROCURATOR FISCAL, GLASGOW Respondent: _______

For the appellant: C Mitchell; Paterson Bell, Edinburgh

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

15 February 2012

Introduction

[1] On 25 August 2009 at Glasgow sheriff court the appellant pled guilty on summary complaint to the following charge:

"On 14th June 2009 at Gordon Street, Glasgow you ... did assault [the complainer] ... and did seize hold of her buttocks."

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

The circumstances

[3] At about 3.20am on the date libelled the complainer, then aged 25, was with a group of female friends in Glasgow city centre. They were waiting for a taxi. The appellant was one of a group of males standing nearby. He was then aged 22. The complainer did not know him. The complainer felt someone grab her buttocks. She turned and saw the appellant. She asked him to move his hand and he replied "Fuck off and lighten up." She pushed him away. The police were contacted and the appellant was identified as the person responsible.

The hearing and the sheriff's decision

[4] Before the sheriff the Crown's position was that this was an indecent assault. The plea in mitigation was that the appellant's behaviour had been drunken and offensive but that he had derived no sexual gratification from it.

[5] The sheriff decided that an assault by grabbing the buttocks was an "indecent assault", and that by reason of paragraph 40 of Schedule 3 to the Sexual Offences Act 2003 the appellant would be subject to the notification requirements of the Act. Quoad ultra he deferred sentence to await background reports. Sentence has since been further deferred pending the outcome of this appeal.

The appeal

[6] The appellant has lodged a bill of suspension and a devolution minute. In the bill of suspension he avers that the sheriff erred in holding that his behaviour in connection with the offence had a significant sexual aspect. In his devolution minute he contends that in bringing this prosecution the Crown violated his right to a fair trial under article 6(1) of the Convention by failing to give him fair notice that the Crown viewed this as an indecent, rather than a simple, assault. He further contends that the prosecution amounts to a disproportionate interference with his right under article 3 of the Convention not to be subjected to inhuman or degrading treatment, and with his right to respect for his private and family life under article 8.

Submissions for the appellant

[7] Counsel for the appellant submitted that it was of the essence of an indecent assault that the conduct outraged public decency (Grainger v HM Adv 2005 SCCR 175). Indecency connoted social unacceptability. The assault on the complainer was not indecent. Therefore paragraph 40 of Schedule 3 did not apply to it. An indecent assault was not necessarily sexual. If the appellant's conduct could be characterised as indecent, it was not sexually indecent. At worst, it had been inappropriate. The appellant had not been given fair notice that the Crown considered this to be an indecent assault. Quoad ultra counsel adopted the Convention-based submissions of counsel for the appellant in Hay v HM Adv (supra) and Heatherall v PF Edinburgh [2012 HCJAC 25].

Submissions for the Crown

[8] The advocate depute submitted that by reason of paragraph 40 of Schedule 3 to the 2003 Act, indecent assault was per se an offence to which the notification requirements applied. The question of significant sexual aspect did not arise. The complaint had libelled what could clearly amount to an indecent assault, and had thus given fair notice. It was not necessary to specify a nomen juris: nor did there need to be evidence of sexual motive or gratification (Grainger, supra). It was for the sentencing sheriff to decide whether the notification requirements of the 2003 Act applied.

Conclusions

[9] In my view paragraph 40 of Schedule 3 does not apply in this case. For the reasons that I have given in Hay v HM Adv (supra), I consider that if the Crown is insistent that an alleged assault is indecent in nature and should therefore, on conviction, result automatically in notification under paragraph 40, it should give express notice of that in the libel itself. The Crown failed to do so in this case and thereby infringed the appellant's article 6 rights. That is a sufficient reason for our allowing the appeal.

[10] In any event, had the substantive question arisen, I would have been of the view that on the facts paragraph 40 of Schedule 3 to the 2003 Act (supra) did not apply.

[11] Since the Crown took its stand on paragraph 40, both before the sheriff and before this court, the possible application of section 60 to the facts of the case is not in issue.

[12] It would appear that this was a momentary incident. When the complainer pushed the appellant away, that was the end of it. If the question of applying paragraph 60 had arisen, I would have considered that the commonsense answer was that notification and its drastic consequences were not brought into play by a minor incident of this nature.

Disposal

[13] I propose to your Lordships that we should allow the appeal, quash the registration of the appellant under the 2003 Act and return the case to the sheriff to decide on the sentence.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Bracadale Lord Osborne	[2012] HCJAC 27 XJ1224/09 OPINION OF LORD BRACADALE In the Appeal by STUART THOMPSON Appellant; against PROCURATOR FISCAL, GLASGOW Respondent: _______

For the appellant: C Mitchell; Paterson Bell, Edinburgh

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

15 February 2012

[14] 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 27 XJ1224/09 OPINION OF LORD OSBORNE In the Appeal by STUART THOMPSON Appellant; against PROCURATOR FISCAL, GLASGOW Respondent: _______

For the appellant: C Mitchell; Paterson Bell, Edinburgh

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

15 February 2012

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