Procurator Fiscal, Edinburgh v. Faisal Aziz [2022] HCJAC46

Appeal from the Sheriff Appeal Court under section 194ZB of the Criminal Procedure (Scotland) Act 1995:- The respondent was convicted on summary complaint at Edinburgh Sheriff Court of a contravention of section 7(1) of the Sexual Offences (Scotland) Act 2009 in that “...whilst acting in the course of your employment as a taxi driver did intentionally and for the purpose of obtaining sexual gratification or of humiliating, distressing or alarming [TM] ... aged 18 ... and [TE] ... aged 21 ... both persons unknown to you ... did direct a sexual verbal communication to them without their consent in that you did make a sexual remark to them.” The appellant appealed to the Sheriff Appeal Court by by stated case which raised two questions:- (1) did I err in rejecting the no case to answer submission under section 160 of the 1995 Act?; and (2) on the facts stated, was I entitled to convict the respondent? It was accepted that there was sufficient evidence upon which to return an alternative verdict of guilty of a breach of the peace thus the sheriff was bound to reject the submission of no case to answer and only the second question remained live. The respondent appealed against his conviction for the section 7(1) charge. The SAC considered that the issue was whether it could reasonably be inferred that the respondent made the communication for the purpose of sexual gratification or for the purpose of humiliating, distressing or alarming the complainers and referred to the exchange between the respondent and the complainers as “short and inspecific” and therefore the sheriff had erred and should only have convicted the respondent of a breach of the peace. The Crown appealed against the decision of the SAC. It was submitted on behalf of the Crown that the exchange between the respondent and the complainers may have been short, its meaning was clear, direct and specific and, in light of the considerable power imbalance between the complainers and the respondent, it was reasonable to infer that the respondent’s intention had been to obtain sexual gratification either immediately or as part of a longer term plan. It was submitted that the SAC had erred in its approach to sexual autonomy as there had been an invasion of the complainer’s sexual autonomy and the respondent’s conduct met the test for sexual deviancy from which the public was entitled to be protected. The respondent accepted that he ought to have been convicted of a breach of the peace, however, his concern related to being made subject to the notification requirements of the 2003 Act. It was submitted that what was necessary to establish that the gratification, or intent, was directly connected to the making of the communication and asking for sexual favours differed from obtaining gratification and did not invade the complainers’ sexual autonomy. Here the court allowed the appeal and reinstated the sheriff’s conviction. The court had little difficulty in inferring from the respondent’s conversation with the complainers that one purpose may have been to obtain sexual gratification. The court observed that the only defence available, once such communications have been proved along with the complainers’ lack of consent, would have been to raise the issue of reasonable belief that the complainers consented which may be done, for example, had the communication been made in a social setting and between persons known to each other, however, that was not the situation here which involved a potential taxi driver and passenger in the public street where the passengers’ obvious wish is to go home and not to indulge in sexual activity with a stranger. The court concluded that even if the appeal against conviction of the section 7 charge had been confirmed the court was satisfied that the breach of the peace involved a “significant sexual aspect”and the respondent would have been made the subject of the notification requirements of the Sexual Offences Act 2003 noting that:- “...persons, especially if they are vulnerable as a result of youth and alcohol, are entitled to be protected from predatory males seeking sexual favours in exchange for fares.” A Compatibility Issue Minute which was raised late was refused on the basis that cause had not been shown for it being raised so late in the proceedings and also on the basis that it was his position that the conduct complained of did not occur and, as such, any complaint that his Article 8 rights were infringed is unarguable.