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Appeal from SAC by Stewart Mitchell Kennedy against PF Aberdeen (High Court of Justiciary) [2024] HCJAC 47 (14 November 2024)
URL: http://www.bailii.org/scot/cases/ScotHC/2024/2024hcjac47.html
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[2024] HCJAC 47
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 47
HCA/2024/476/XC
Lord Justice General
Lord Doherty
Lord Matthews
OPINION OF THE COURT
Delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
the Appeal from the Sheriff Appeal Court
under section 194ZB of the Criminal Procedure (Scotland) Act 1995
by
STUART MITCHELL KENNEDY
Appellant
against
PROCURATOR FISCAL, ABERDEEN
Respondents
Appellant: McCall KC, Adams; John Pryde & Co SSC (for Levy & McRae, Glasgow)
Respondents: A Prentice KC (sol adv) AD; the Crown Agent
________________________
14 November 2024
Introduction
[1]
This appeal concerns the conduct of a male stripper who was performing at a hen
party. During the performance he touched, and had other physical contact with, members of
the audience. The question is whether his touching and other physical contact with two
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audience members, who did not consent to it, were "sexual" in terms of section 60(2), and
whether they constituted sexual assaults in terms of section 3, of the Sexual Offences
(Scotland) Act 2009.
Charges and sentence
[2]
The appellant was convicted of two charges under section 3 of the 2009 Act relating
to two complainers. In terms of the libel, the first charge concerned the appellant sitting on
the complainer's lap and attempting to embrace her. The second involved the appellant
rubbing his body against the complainer. The court imposed a community payback order
with a supervision requirement of 12 months.
Facts
[3]
The sheriff's findings in fact are set out in the stated case. The appellant was
engaged to perform as a stripper at a hen party. Some of those invited to the hen party were
forewarned of this. Others were not. The first complainer was not aware of the prospect of
a stripper appearing until the performance had started. The second complainer became
aware of this shortly before the appellant's performance.
[4]
The appellant stripped so that he was naked apart from a small loincloth. During the
performance he interacted with members of the audience. The act was ostensibly to check
for "flammable substances" on those attending; this being said to be in character with the
appellant's stage persona as a fireman. He moved his hands up and down the women's
bodies; specifically over their breasts. He simulated sexual acts with them.
[5]
When the appellant approached the first complainer, she held her arms and legs out
in an attempt to prevent him from engaging with her. The appellant climbed over her legs
and continued moving towards her. She picked up a glass of water to indicate that she
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would throw it over him. The appellant persisted. He took the glass from her. He sat on her
lap facing towards her and thrust his hips back and forth against her repeatedly to simulate
sexual intercourse.
[6]
When the appellant attempted to engage the second complainer, she said "no",
moved behind a table and, being apprehensive that he would touch her breasts, crouched
down with her arms around her chest. The appellant went behind the table, approached her
from behind, placed his arms around her and thrust his body repeatedly against her back
and buttocks.
[7]
The only finding in fact in the stated case which is challenged is that, in terms of
section 60(2), a reasonable person would regard the appellant's touching of, and physical
contact with, the complainers to be "sexual". In his note, the sheriff recorded that each
complainer had made it clear that she did not want to have any physical interaction with the
appellant.
[8]
The sheriff observed that the appellant's sole defence was that his conduct was not
sexual. It was part of a performance which was too silly to be sexual. That was the only
basis for the application for a stated case. It is the sole ground to which the questions in the
case are directed. In holding that the appellant's conduct was sexual, the sheriff took into
account (stated case para [50]) "the general context and content of the appellant's
performance", notably its sexual theme and tone, "even if it was also intended as
entertainment". The sheriff had regard (at para [52]) to the fact that the appellant was
"virtually naked" at the time of his contact with the complainers. The appellant deliberately
touched and had other physical contact with the complainers in a manner which a
"reasonable person would consider sexual". The appellant's underlying motivation, that of
providing entertainment, did not alter the underlying character of the conduct.
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Sheriff Appeal Court (2024 SLT (SAC) 154)
[9]
The Sheriff Appeal Court identified (at para [9]) the core issue as being whether the
sheriff had been correct to find that a reasonable person would have considered the conduct
to be sexual. The SAC considered sections 3 and 60(2) of the 2009 Act, along with
section 45A of the Civic Government (Scotland) Act 1982; the latter providing a definition of
"sexual entertainment." The SAC did not consider the 1982 Act to be of assistance in
determining whether conduct was sexual in the context of the 2009 Act.
[10]
The test contained within section 60 of the 2009 Act was an objective one of what a
reasonable person would consider to be sexual "in all the circumstances of the case". The
sheriff had been entitled to conclude that the conduct was sexual. If all components of
section 3 of the Act were met, the offence was proved. In relation to each complainer there
had been actual physical contact; not merely simulated touching or gesturing. The SAC
reasoned (at para [14]) that "sexualised entertainment is sexual in nature by definition ... The
... motivation behind these deliberate acts is not a relevant consideration in relation to ... dole
or mens rea". The 2009 Act was designed to protect the sexual autonomy of a complainer.
The centrality of consent marked the boundary between criminal and non-criminal sexual
conduct. The appeal was refused.
Compatibility issue
[11]
In the Note of Appeal to this court, there is mention of the appellant's right to
freedom of expression under Article 10 of the European Convention. It is argued that the
Sheriff Appeal Court's decision involved an "absolute prohibition of touching of audience
members without their express consent" and that this was disproportionate. It was not that
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section 3 of the 2009 Act was incompatible with Article 10; only that the SAC's interpretation
of it, along with section 60(2), rendered it incompatible.
[12]
The court declined to entertain the issue. If it were to be argued that criminalising
the appellant's conduct amounted to a breach of his Article 10 right, this ought to have been
raised as a compatibility issue in advance of trial (Act of Adjournal (Criminal Procedure
Rules) 1996, rules 40.3(2) and (3)). That was not done; nor was such an issue raised in the
stated case, which governed the scope of the appeal before the SAC. It was not raised before
the SAC. No cause has been shown as to why such an issue should be raised in this second
appeal process (rule 40.6(1)). The contention is not one which appeared to have substantial
merit. The right to freedom of expression is a qualified one. It does not entitle a person to
engage in non-consensual sexual activity with others. The complainer's Article 8 rights,
including that of sexual autonomy, are engaged. It is not correct to say that the SAC
decision constitutes an absolute prohibition on touching without express consent during
sexual performances. There is no basis for saying that anything that the SAC determined
gave rise, for the first time, to a compatibility issue.
Submissions
Appellant
[13]
In considering "sexual conduct" it was relevant that the host of the hen party had
hired the appellant. He was registered with Equity and held public liability insurance. The
event took place in a private function room of a pub. The performance was a comedy strip
show. The physical interactions were intended to be amusing. The host found them to be
amusing and not offensive.
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[14]
The Sheriff Appeal Court failed to consider the context of the conduct. The SAC had
erred in holding "motivation" to be irrelevant. This was considered under reference to the
requisite mens rea (cf Lord Advocate's Reference (No.2 of 1992) 1992 JC 43). The appellant had
intentionally touched and otherwise had physical contact with the complainers. The mental
element required in section 3 was met. The actus reus of section 3 was not met. The
interactions with the complainers had not been "sexual". Section 60(2) provided an
objective test and that necessitated a consideration of "all the circumstances." The
appellant's motivation was one of these circumstances. A person's motivation could be
highly significant; one example being the motivation of a paramedic who required to touch a
sexually sensitive part of an unconscious patient to provide necessary treatment. The SAC
erred in considering that "sexualised entertainment is sexual in its nature by definition". A
reasonable person would recognise that a stripper was a paid performer, who was hired to
entertain.
[15]
For "sexual entertainment" to become criminal, the Crown had to prove that the
actions were sexual rather than those of someone engaging in the normal course of a
performance for which they were employed. The correct analysis was to consider whether
the behaviour was sexual, not to presume that it must be. This included consideration of it
being a performance, which was not sexually motivated, and not for the performer's sexual
gratification (cf Wightman v HM Advocate 2017 SCCR 437). Both the sheriff and the SAC
failed to take account of the appellant's motivation, and that he was performing at the
erroneously, treated the respondent's motivation as being irrelevant.
Respondent
[16]
The test of whether touching, or other physical contact, was sexual was an objective
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one to be reached after consideration of all the relevant facts and circumstances. The nature
of the touching or physical contact itself may be a factor pointing to it being sexual. The sole
question for the sheriff was whether, objectively viewed, the touching and physical contact
were sexual as defined in the 2009 Act.
[17]
The appellant's performance had an explicit sexual theme and tone. The
performance was described by the hen party host as "adult", "sexy" and "raunchy." The
appellant's interaction with members of the audience involved touching their breasts and
the simulation of sexual acts. The appellant approached the second complainer from behind
and thrust his body against her back and buttocks. The appellant simulated sexual
intercourse on the lap of the first complainer. On each occasion he was naked apart from a
loincloth.
[18]
The 2009 Act protected the sexual autonomy of the individual. It recognised that
those who commit sexual assault may do so for reasons other than sexual gratification. As
with every type of sexual activity, the touchstone was autonomy and consent. The appellant
had not respected the choice of the complainers not to participate in his performance. He
knew that they did not consent, yet continued. It was the lack of consent and the absence of
any reasonable belief of consent which rendered the appellant's conduct unlawful. The
sheriff and the SAC considered all the circumstances, including that the conduct occurred
during the appellant's performance and that his motivation had been to amuse and entertain
the audience.
Decision
[19]
Section 3 of the Sexual Offences (Scotland) Act 2009 provides that it is an offence,
intentionally or recklessly, to touch someone else sexually (s 3(2)(b)) or to engage in any
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other form of sexual activity involving physical contact with them (s 3(2)(c)) . Section 60(2)
provides that touching or any other activity is sexual if a reasonable person would, in all the
circumstances, consider it to be sexual. The touching must be deliberate or reckless; that is
the mental element of the crime. When looking at whether the crime has been committed, it
is important to look at the words of the statute, notably the terms of what is defined as
"sexual" in section 60(2). This requires the fact finder to look at "all the circumstances" in
order to predict the mindset of the reasonable person. There is no reason to exclude an
accused's motives from this equation, although what weight ought to be given to them will
vary according to the particular facts. Equally, as the sheriff correctly acknowledged, the
context of the conduct will be a relevant factor to be weighed in the balance.
[20]
One obvious example where touching or other bodily contact is usually sexual is
where it occurs on sexually sensitive parts of the body, such as female breasts, buttocks or
the genital area. Less usually, the context may indicate that touching such parts is not sexual
(cf the paramedic, supra). An example in which contact is almost always sexual is where the
male intentionally touches the female with the area of his genitalia or in a manner which
emulates a sexual act. The appellant used both of these methods during his performance,
but he maintained nevertheless that the conduct was not sexual because he was acting a
part. His motive was entertainment and was not for sexual gratification. These were all
relevant circumstances. In so far as the opinions of the Sheriff Appeal Court both in this
suggest otherwise, they are in error. However, something which is part of a performance,
and the motivation for which is entertainment, may still be sexual. In this case, other
circumstances pointed strongly to that being the correct conclusion.
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[21]
An essential point to stress is that sexual touching or other sexual bodily contact is
not criminal per se. It constitutes a contravention of section 3 only if it is done without the
consent of the person with whom there is touching or bodily contact or without any
reasonable belief that they are consenting. A performer does not have a licence to invade the
sexual autonomy of audience members. Any such invasion requires the free agreement of
the person affected.
[22] In respect of both complainers, there was neither consent nor reasonable belief that
they were consenting. They made it clear to the appellant that they did not wish him to
touch or have bodily contact with them. The nature of what took place involved intimate
physical contact and the simulation of sexual acts. Their sexual autonomy was invaded.
These were weighty circumstances pointing to the conduct being sexual.
[23]
The sheriff applied the correct test. He had regard to all the circumstances. The SAC
were correct to refuse the appeal. In all the circumstances, there is no doubt that the
appellant did sexually assault the complainers in terms of section 3(1) and (2)(b) and (c) of
the 2009 Act. The appeal is therefore refused.
