Stuart Thompson v. Procurator Fiscal, Glasgow [2012] HCJAC 27

Criminal Appeal:- This appeal was heard with the appeals in Hay v HMA [2012 HCJAC 28]. On 25 August 2009 at Glasgow sheriff court the appellant pled guilty on summary complaint to the following charge:- "On … at … you ... did assault [the complainer] ... and did seize hold of her buttocks." The Crown's position was that this was an indecent assault. The plea in mitigation was that the appellant's behaviour had been drunken and offensive but that he had derived no sexual gratification from it. The sheriff decided that an assault by grabbing the buttocks was an "indecent assault", and that by reason of paragraph 40 of Schedule 3 to the Sexual Offences Act 2003 the appellant would be subject to the notification requirements of the Act. The sheriff deferred sentence pending the outcome of this appeal. The appellant lodged a bill of suspension and a devolution minute. In the bill of suspension he averred that the sheriff erred in holding that his behaviour in connection with the offence had a significant sexual aspect. The devolution minute contended that in bringing this prosecution the Crown violated his right to a fair trial under article 6(1) of the Convention by failing to give him fair notice that the Crown viewed this as an indecent, rather than a simple, assault. It was submitted on behalf of the appellant that the essence of an indecent assault was that the conduct outraged public decency and the assault on the complainer here was not indecent and therefore paragraph 40 of Schedule 3 did not apply to it. It was submitted on behalf of the Crown that by reason of paragraph 40 of Schedule 3 to the 2003 Act, indecent assault was per se an offence to which the notification requirements applied. Here the court considered whether paragraph 40 of Schedule 3 applied here or if the Crown was insistent that an alleged assault was indecent in nature and should on conviction result automatically in notification under paragraph 40, whether it should give express notice of that in the libel itself. The court went on to consider if the question of applying paragraph 60 had arisen, and whether notification should have applied in relation to the incident.