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Crown appeal by stated case by PF Edinburgh against Steven Harper [2024] SACCRIM 10 (23 October 2024)
URL: http://www.bailii.org/scot/cases/ScotSAC/Crim/2024/2024saccrim10.html
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[2024] SACCRIM 10
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SHERIFF APPEAL COURT
[2024] SAC (Crim) 10
SAC/2024/319/AP
Sheriff Principal N A Ross
Sheriff Principal C Dowdalls KC
Sheriff Principal G A Wade KC
OPINION OF THE COURT
delivered by SHERIFF PRINCIPAL G A WADE KC
in
Crown Appeal by Stated Case
by
PROCURATOR FISCAL, EDINBURGH
Appellant
against
STEVEN HARPER
Respondent
Appellant: Harvey AD; Crown Agent
Respondent: Collins, (sol adv); CN Defence Ltd, Edinburgh
23 October 2024
[1]
On Christmas Eve 2022 the respondent was in the Argyle Bar in Edinburgh drinking
with his partner and his friend. He had been there for some time and had consumed
between six and eight pints. The group were seated at the bar on stools. The complainer,
YZ, was also in the premises with her relatives. She went up to the bar to order some
drinks. In order to speak to the bar staff she moved into the gap between the two bar stools
2
on which the respondent's partner and friend were sitting. The respondent's friend was
on her left and his partner was on her right. While standing there she felt someone touch
the left cheek of her bottom with a degree of force. She felt outraged and humiliated. She
immediately turned around and tried to identify whoever was responsible. Initially she
was unable to do so and asked to view the CCTV of the bar area. This clearly showed the
respondent as the perpetrator. He is seen to reach behind both his partner and YZ and
then to touch YZ on the left cheek of her bottom, which was the side closest to his friend.
[2]
The respondent maintained that due to his limited view and the amount of alcohol
he had consumed he had mistakenly thought that YZ was his friend, LH, who regularly
drank in the Argyle Bar and who, according to him, resembled YZ. His intention was to
play a practical joke by touching the woman he thought to be LH on the bottom in such a
way that his friend would get the blame. He therefore pinched the bottom of the woman
he had mistakenly identified as LH on the side closest to his friend, so that she would think
that his friend was responsible. It is fair to say that the so-called joke backfired.
[3]
The respondent, having been identified by other customers and from the CCTV,
was confronted by YZ's father, to whom he responded aggressively. The matter escalated
causing upset to customers and staff. Eventually the respondent was persuaded to leave the
pub. The matter was reported to the police and the respondent was subsequently charged.
[4]
The complaint libelled two charges; however, the Crown's appeal by stated case is
made only in relation to charge 1. As libelled, it stated:
"(001) on 24 December 2022 at Argyle Bar, 15-17 Argyle Place, Edinburgh you
STEVEN HARPER did sexually assault [YZ], c/o The Police Service of Scotland,
in that you did handle her hinder parts; CONTRARY to Section 3 of the Sexual
Offences (Scotland) Act 2009"
3
[5]
Following trial, the sheriff convicted the respondent of charge 1, as amended by him,
as follows:
"(001) on 24 December 2022 at Argyle Bar, 15-17 Argyle Place, Edinburgh you
STEVEN HARPER did assault [YZ], c/o The Police Service of Scotland, in that
you did touch her hinder parts."
[6]
As is evident from the above, the changes made by the sheriff to charge 1 led to a
finding of guilt of assault at common law, rather than conviction of a sexual assault in terms
of section 3 of the Sexual Offences (Scotland) Act 2009. The Crown contends that, given the
nature and circumstances of the assault, the sheriff erred and the respondent ought to have
been convicted of a contravention of section 3.
The stated case
[7]
The sheriff poses five questions in the stated case:
i.
Did I err, on the facts stated, in convicting the respondent of an assault upon
the complainer at common law, rather than the statutory offence libelled in
charge (001)?
ii.
On the evidence led as hereinbefore stated by me, was I entitled to make
finding in fact 10?
iii.
On the evidence led as hereinbefore stated by me, was I entitled to make
finding in fact 11?
iv.
On the evidence led as hereinbefore stated by me, was I entitled to make
finding in fact 23?
v.
On the evidence led as hereinbefore stated by me, was I entitled to make
finding in fact 24?
4
Facts
[8]
The key facts directly challenged by the Crown are as follows:
"10. The respondent decided, as a practical joke, to touch the woman he
thought to be LH on the bottom, in such a way that his friend [...] would
get the blame.
11.
[The respondent's] judgement was impaired by alcohol, both in mistaking
[YZ] for LH and in deciding to do such a foolish thing. He put his hand
round behind his partner's back and touched [YZ] on the left-hand buttock,
being the side closest to [his friend].
...
23.
The touching of [YZ] on the bottom was deliberate and constituted an assault
at common law. It was not sexual.
24.
In all the circumstances, a reasonable person would not have considered the
touching of [YZ's] bottom to be sexual."
Legislation
[9]
The following parts of the 2009 Act which are relevant to this appeal are:
"Section 3 Sexual Assault
1)
If a person (`A')
(a) Without another person (`B') consenting, and
(b) Without any reasonable belief that B consents,
does any of the things mentioned in subsection (2), then A commits an
offence, to be known as the offence of sexual assault.
2)
Those things are, that A-
...
(b) intentionally or recklessly touches B sexually,
(c) engages in any other form of sexual activity in which A, intentionally or
recklessly, has physical contact with B (whether bodily contact or contact
by means of an implement and whether or not through clothing) with B"
"Section 60 - Interpretation
(2)
For the purposes of this Act-
(a) penetration, touching or any other activity,
...
5
is sexual if a reasonable person would, in all the circumstances of the case,
consider it to be sexual."
Submissions for the Crown
[10] The sheriff held that the assault was not sexual because: (i) it was a practical joke;
and (ii) it was relevant that the accused was intoxicated. Neither of those factors was,
however, relevant to determining whether there was a contravention of section 3. The
sheriff had approached matters subjectively and had also had regard to matters that did
not impact on the objective consideration of whether or not the touching of YZ was sexual.
[11] The respondent's motivation was irrelevant. The fact that he meant the touching as
a practical joke and that he meant to touch someone else did not mean there had been no
sexual assault. What was relevant was whether the touching of the respondent's bottom
was intentional. If so the question of whether the touching is sexual is determined on the
application of the objective test in section 60(2). If, on that objective test, the touching is
found to be sexual, the respondent was guilty of sexual assault, irrespective of motive:
Kennedy v Procurator Fiscal, Aberdeen 2024 SLT (SAC) 154 at para [14]. In any event,
committing a crime for a joke is no defence to a charge of assault, because that goes to
motive not intent: Lord Advocate's Reference (No 2 of 1992) 1992 JC 43 at p 48C-D. The
same must be true for sexual assault, otherwise the objective test would become entirely
subjective.
[12] The sheriff had erred in taking account of the respondent's impairment through
alcohol. Touching that is objectively sexual does not become non-sexual because the
accused was intoxicated: Ferguson v HM Advocate 2022 SCCR 26 at para [22].
[13] The fact that the respondent had no interest in the complainer before he touched
her bottom was of no relevance. Although prior interest in a complainer might be good
6
evidence that touching her was sexual (for instance, rebutting a defence that the touching
was accidental), the converse is not true. An absence of prior interest is no more relevant
to assessing whether a touch is sexual than prior sexual activity is to whether a sexual act
was consensual. The nature of the touching has to be examined in light of the circumstances
at the time of the offence: what was done, where and how the complainer was touched.
Submissions for the respondent
[14] The application lodged by the Crown for a stated case proceeded on the basis that
no reasonable sheriff, properly directing themselves in law, would have made the decision
that the sheriff here did. The Crown was wrong to contend that the sheriff had not properly
directed himself in law. The stated case makes clear he had applied section 60(2). That
was evident from paras [72], [78] and [80] of the stated case, where the sheriff set out his
reasoning. Instead, the Crown now sought to argue that the sheriff had erred in law in the
manner in which he applied section 60(2), contrary to the basis upon which their application
had been made. For that reason alone, the appeal ought to be refused.
[15] The sheriff did not err in taking into account: (i) that the respondent's act was a
practical joke; and (ii) that the respondent was intoxicated. The evidence as to the
respondent's intent to play a practical joke was relevant insofar as explaining why he
had done what he did. Contrary to the Crown's interpretation of para [22] of Ferguson,
the Appeal Court did not state that the fact an accused was intoxicated was irrelevant in
determining whether there was a contravention of section 3; what it said was that it would
be unlikely to be of any great significance in determining that question. Finally, in order to
apply the objective test at section 60(2), the sheriff could not be said to have been in error in
taking account whether or not there had been previous interactions between the complainer
7
and the respondent. That could be useful evidence that would assist a sheriff or jury in their
application of section 60(2) in assessing, objectively, whether the touching had been sexual.
Decision
[16] In oral submissions the respondent's first challenge to the appeal was that the
argument now advanced by the Crown differed from that in the application for a stated
case and for that reason alone, the appeal ought to be refused. We take this opportunity
to remind parties once again that in appeals by stated case the scope of the appeal is
determined by the stated case itself and the questions posed (B v Murphy 2015 SLT 214
per Lord Justice Clerk (Carloway) at paras [6], [7] and [14]).
[17] In this case the first question asks whether the sheriff erred, on the facts stated, in
convicting the respondent of an assault upon the complainer at common law, rather than
the statutory offence libelled in charge 1. That question necessarily involves consideration
of the legislation and subsequent case law. Accordingly there is no merit in the submission
that the terms of the application constrain this court from doing precisely that.
[18] Turning to substance of the appeal, there is no challenge to the finding that what
occurred was an assault. The question is whether that assault was sexual and therefore a
contravention of section 3 of the 2009 Act. The sheriff made findings in fact in relation to
the respondent's state of intoxication, his intention to perpetrate a practical joke, and the
lack of any previous interest in YZ, but only as factors relevant to assessing whether or not
the assault was sexual. In our view, however, the test under section 3(2)(b) does not admit
of these factors. The question is whether the respondent intentionally or recklessly touched
YZ sexually.
8
[19] The starting point is the entitlement to sexual autonomy. As the Lord Justice
Clerk (Carloway) recently made clear in PF Edinburgh v Faisal Aziz 2023 SCCR 55 at
para [20-22]:
"[20] The common law has always criminalised certain conduct which interferes
with the sexual autonomy of others, notably, but not exclusively, females. It did
this in two ways. First, it rendered criminal acts which involved the physical
invasion of the body of another in the form of, for example, rape and indecent
assault.
...
[22]
It was against that background, and the redefinition of rape in
Lord Advocate's Reference (No. 1 of 2001) [2002 SLT 466], that the Scottish Law
Commission produced its Report 9 on Rape and Other Sexual Offences [no 209]
in 2007. This examined how, what it described as, `the most fundamental principle'
of `[r]espect for sexual autonomy' might find its way into the criminal law. This
respect was described as operating (para 1.25): `Where a person participates in a
sexual act in respect of which she has not freely chosen to be involved, that person's
autonomy has been infringed, and a wrong has been done to her. This generates a
fundamental principle for the law on sexual offences, namely that any activity which
breaches someone's sexual autonomy is a wrong which the law should treat as a
crime.
[23]
The most obvious breaches of sexual autonomy, in the context of
participating in a sexual act, involve some form of physical interference with the
person of another..."
[20] Certain parts of the anatomy are inherently sexual. Touching on such an area would
more readily be considered intimate and indeed sexual. Physical interference with such
areas, absent consent, is precisely what the Scottish Law Commission had in mind when
considering how to address breaches of sexual autonomy in what became the Sexual
Offences (Scotland) Act 2009. At paragraphs 3.42-3.44 of its Report, the Scottish Law
Commission considered the appropriate means by which to determine what constitutes
"sexual" conduct. It concluded that an objective test was appropriate, and observed:
"...adopting purely subjective approaches could lead to odd results (for example
an accused could not be convicted of a sexual assault where he genuinely believed
that touching a woman's vagina or breasts was not sexual in nature)."
9
[21] In Ferguson v HMA 2002 SCCR 26 at para [21] the court, in disapproving the earlier
case of PF Edinburgh v Scott Dunn 2015 SCCR 449 said:
"A reasonable person would be likely to have in mind that a woman's buttocks
are among the more private parts of her anatomy and that another person might
well have a sexual interest in observing or touching them. Each case will turn on
its own particular facts and circumstances. In our view, on the facts in SD it was
open to the sheriff to conclude that the grabbing of the complainer's buttocks was
sexual. We find it unsurprising that he reached that conclusion."
That being so the requirements of section 3 are prima facie met in this case and a sexual
assault was committed. The respondent did, without YZ's consent, intentionally or
recklessly touch her on the buttock which, following Ferguson, is a part of the body which
is objectively considered private, and the interference with which is a breach of sexual
autonomy. The requirements of section 3 are satisfied.
[22] The questions posed and the submissions made oblige us, however, also to consider
section 60(2)(a) and the test for determination of what is "sexual". The sheriff was prepared
to place weight on certain factors which in his view negated the sexual nature of the assault.
He approached matters on the basis that the respondent's actions were the result of a
mistake rather than sexual intent. He accepted that the motivation had been to perpetrate
a practical joke and that the lack of previous attention paid by the respondent to YZ was
relevant. He considered that the mistaken identity arose from the respondent's state of
intoxication. Having accepted that this was a mistake, the sheriff was persuaded to follow
Dickson v PF Kilmarnock 2023 SAC (Crim) 3 at paragraph 29 and convict of a common law
assault only.
[23] The sheriff clearly had in mind the correct test in section 60(2)(a) of the Sexual
Offences (Scotland) Act 2009, namely whether a reasonable person would, in all the
10
circumstances of the case, consider the touching to be sexual, judged objectively. In our
view, however, he fell into error by assessing only the respondent's intention or motivation.
[24] Objectively, a person in the respondent's position would know very well that if a
woman were touched on the bottom by an unknown person in a pub that would be likely
to infringe her sexual autonomy and provoke a negative reaction. That was the whole point
of the so-called joke. He could not, and did not, claim not to have known that it was wrong
to touch a woman in such a way and knew that his friend would get into trouble if he was
thought to be the culprit. YZ had every right to react as she did.
[25] The sheriff erred in placing undue weight on the respondent's motive, and
insufficient weight on sexual autonomy. Committing a crime for a joke is no defence
(Lord Advocate's Reference No 2 of 1992 1992 JC 43 at page 48C-D). In section 3 the issue of
intent is related only to the touching itself, not the reason for the touching. In this case the
respondent did intend to touch the bottom of a woman, albeit a different woman. He was
at least reckless in relation to who it was he actually touched in this way. LH's evidence,
about how she might or might not have reacted if it had been her bottom that was touched,
was irrelevant. That evidence was both hypothetical and subjective and in our view ought
not to have been admitted.
[26] The issue of motive was recently considered in Kennedy v PF Aberdeen 2024
SLT (SAC) 154 in the context of sexualised entertainment. At para [14] the court said:
"The appellant's position that this was a form of sexualised entertainment is
not a defence to either charge in our view. Sexualised entertainment is sexual
in nature by definition. The acts described by the complainers were carried out
deliberately in each case and the motivation behind these deliberate acts is not
a relevant consideration in relation to the question of dole or mens rea. If the
constituent elements of a contravention of section 3 of the 2009 Act are made out,
the accused's motivation is irrelevant."
11
[27] If it were the case that the Crown required to prove that the accused intended the
touching to be sexual, the deliberately framed objective test would become subjective.
Provided it is established that an accused intended to touch the complainer at all and that
the touching was objectively sexual, either because of where the complainer was touched
or the manner of the touching, the crime is committed.
[28] It follows that touching which is objectively sexual does not become non-sexual
because the accused was intoxicated, or intending a joke. Having regard to Ferguson (supra)
(at paragraph 22, page 32A-C):
"The fact that an accused was intoxicated at the time of an alleged offence is, of
course, one of the facts and circumstances to which a decision-maker may have
regard along with all the other facts and circumstances when deciding whether a
reasonable person would consider the behaviour in question to be sexual. However,
usually it is unlikely to be of any great significance. We see no error in the approach
the sheriff took. We do not find the distinction which the court drew between
`drink-fuelled' and `overtly sexual' assaults helpful or illuminating in this context,
not least because the proposed dichotomy is a false one. The two categories are not
mutually exclusive. Many sexual assaults are committed by assailants who are
intoxicated to varying degrees with alcohol or drugs or both; and, in general,
self-induced intoxication is no defence to a criminal charge (Brennan v HM
Advocate 1977 JC 38, opinion of the court delivered by Lord President Emslie at 47;
see also 50 and 51). In every case, if all of the other requirements of s.3 are satisfied,
the question is whether in all the circumstances a reasonable person would consider
the relevant activity to be sexual. That is the position whether or not the perpetrator
was intoxicated."
[29] The sheriff considered that the excess alcohol led to the mistaken identity, not that it
excused the respondent's behaviour. However, he erred in concluding that it could, in the
circumstances of this case, negate the sexual act of touching someone on the bottom, in the
manner which occurred. Similarly, the lack of previous interest did not remove the sexual
nature of the touching.
[30] We answer the first three questions in the affirmative, and the fourth and fifth
questions in the negative, and quash the respondent's conviction for assault. We will
12
substitute a conviction for a contravention of sexual assault by the reinsertion of the word
"sexual" in line 2 of the charge and the reinsertion of the words "CONTRARY to section 3 of
the Sexual Offences (Scotland) Act 2009" at the end of the charge.
[31] In relation to sentence the sheriff fined the respondent £300, and the sentence is not
challenged. However as a consequence of his conviction in terms of section 3 of the 2009 Act
the respondent must now be made subject to the notification requirements of the Sexual
Offences Act 2003 for a period of 5 years.
