Paul McFadyen v. Procurator Fiscal, Paisley [2019] HCJAC 65

Appeal from the Sheriff Appeal Court:- The appellant was convicted after trial at Paisley Sheriff Court of a summary complaint including two charges (charges 2 and 3), both contraventions of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The appellant was acquitted of a charge of sexual assault by the touching of A who was aged 14 at the time. Charge 2 related to behaving in a threatening, or abusive manner which was likely to cause a reasonable person to suffer fear or alarm by attempting to entice B, who was aged 18, into his car. Charge 3 involved behaving in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm by following A, who was aged 14, enticing her into his car, asking for her name and telephone number and repeatedly asking her to come to his home address. Following the appellant’s conviction the trial sheriff invited parties to make submissions in relation to whether there was a significant sexual element to the offences, which would result in the notification requirements of the Sexual Offences Act 2003 applying. In relation to non-scheduled offences, paragraph 60 of schedule 3 to the 2003 Act applies which provides:- “the court, in imposing sentence or otherwise disposing of the case, determines for the purposes of this paragraph that there was a significant sexual aspect to the offender's behaviour in committing the offence.” It had been submitted on behalf of the Crown that there was a significant sexual aspect to the offences of which the appellant had been convicted whilst on behalf of the appellant it had been submitted that any sexual element was restricted to charge 1, for which the appellant had been acquitted. The sheriff considered that there was a significant sexual aspect to the conduct and made the appellant subject to the notification requirements of the 2003 Act. The appellant appealed to the Sheriff Appeal Court against his conviction and sentence which was refused. The appellant was granted leave to appeal to the High Court on the ground that there had not been adequate notice that the conduct libelled might trigger the notification requirements. It was submitted on behalf of the appellant that if the Crown were ultimately going to contend that there was a significant sexual element in an offence then that required to be narrated in the libel along with the facts and circumstances from which that aspect was to be inferred (Hay v HMA 2014 JC 19). It was submitted that in the present case there was an absence of adequate notice of a narration of facts and circumstances which could allow the inference that there was a significant sexual element to the conduct in question which ought to have precluded the court from considering the question. On behalf of the Crown it was submitted that the conduct in charges 2 and 3 should be considered along with the conduct relating to the sexual assault charge notwithstanding that the appellant had been acquitted of it. It was submitted there was a reasonable inference to be drawn from the narrative of the complaint, charges 1 and 3 were both part of the same event, that the question of a significant sexual element was put in issue and would be raised in the evidence. Here the court considered the case of Hay and refused to take from it that a significant sexual element may be established only where direct assertion of that has been made in the libel. The court observed that whilst it may be the “clearest and safest” way to assert a significant sexual element it is not the only way. In relation to Hay the court considered that two key issues are clear:- (1) the circumstances of the libel must set out facts and circumstances from which a significant sexual aspect of the case may be inferred; and (2) in all cases where the issue arises at a hearing the sentencer must give the defence a full opportunity to make submissions on the issue. In relation to the present case the court considered that it was not necessary to decide whether there was, as a matter of fact, a sexual element to the offences, nor was it necessary to consider the relevance of taking into account evidence led in relation to a charge which did not result in a conviction. The court stated that this was not a case where the charges libelled contained only non-scheduled offences and the court considered that it could not be said that the complaint did not give adequate notice that notification may be an issue in respect of any of the charges. In addition, the nature of the conduct narrated in charges 2 and 3, particularly when viewed along with charge 1, was such as to provide sufficient notice. The court noted that it was the sheriff who raised the issue following conviction and, in allowing parties an opportunity to fully address the court on the issue, the requirements referred to in Hay were met. The court observed that even if it had concluded that there had been insufficient notice as contended on behalf of the appellant, in light of the opportunity given to the appellant’s solicitor to make submissions to the sheriff, the court would not have concluded that there had been a miscarriage of justice.