Procurator Fiscal, Edinburgh v. Steven Harper [2024] SAC (Crim) 10

Crown Appeal by Stated Case:- The respondent appeared on summary complaint at Edinburgh Sheriff Court in relation to a charge of sexual assault contrary to section 3 of the Sexual Offences (Scotland) Act 2009 in that he did “handle the hinder parts” of YZ at the Argyle Bar in Edinburgh on 24 December 2022. Following trial the sheriff convicted the respondent of the charge as amended by him by deleting reference to the assault being “sexual” and under deletion of the reference to section 3 of the 2009 Act, finding the respondent guilty of an assault at common law. The Crown appealed against the sheriff’s decision contending 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 circumstances were that the complainer and the respondent were in the locus and the complainer whilst standing at the bar felt someone touch the left cheek of her bottom with a degree of force. Subsequent CCTV footage showed that it was the respondent who was responsible. It was the respondent’s position 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 resembled YZ. It was the respondent’s intention 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. The Crown appealed by stated case. It was contended by the Crown that the sheriff erred in holding that the assault was not sexual because he considered (1) it was a practical joke; and (2) it was relevant that the respondent was intoxicated. It was submitted that the sheriff had approached his task in a subjective way and had considered matters, like the respondent’s state of intoxication, that should not impact on the objective issue of whether or not the touching of YZ was sexual. On behalf of the respondent it was submitted that the sheriff did not err in taking into account that the respondent’s motivation was a practical joke and that he was intoxicated. Here the court allowed the appeal. The court, having regard to section 60 of the 2009 Act, considered that factors including the respondent’s state of intoxication, his intention to perpetrate a practical joke, and the lack of any previous interest in YZ were irrelevant in determining whether the assault was sexual, the question being whether the respondent intentionally or recklessly touched YZ sexually. The court considered that the intentional or reckless touching of an objectively considered intimate area of the body without YZ’s consent which breached YZ’s sexual autonomy satisfied the requirements of section 3. The court convicted him of a contravention of section 3 of the 2009 Act and made him subject to the notification requirements of the Sexual Offences Act 2003 for a period of 5 years.