James Gerald Patrick Heatherall V. Procurator Fiscal Edinburgh
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Bracadale,Lord Osborne |
| Judgment Date | 15 February 2012 |
| Neutral Citation | [2012] HCJAC 25 |
| Date | 15 February 2012 |
| Published date | 17 February 2012 |
| Court | High Court of Justiciary |
| Docket Number | XJ572/10 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Bracadale Lord Osborne | [2012] HCJAC 25 XJ572/10 OPINION OF THE LORD JUSTICE CLERK In the Appeal by JAMES GERALD PATRICK HEATHERALL Appellant; against PROCURATOR FISCAL, EDINBURGH Respondent: _______ |
For the Appellant: Shead, Lenehan; Beaumont & Co, Edinburgh
For the Crown: Stewart QC, AD, McGuire; Crown Agent
15 February 2012
Introduction
[1] On 26 April 2010 at Edinburgh sheriff court the appellant appeared on complaint on the following charge:
"On 1st August 2009 at High Street, Penicuik you ... did assault [complainer] ... and did expose your naked penis and thereafter seize her by the body and repeatedly thrust your naked penis against her."
The Crown accepted his plea of guilty to an amended charge of breach of the peace by exposing his naked penis to the complainer.
[2] This appeal was heard along with Hay v HM Adv [2012 HCJAC 28].
The disposal appealed against
[3] The sheriff fined the appellant £225. That sentence is not appealed against. The sheriff also determined, in terms of paragraph 60 of Schedule 3 to the Sexual Offences Act 2003, that there was a significant sexual aspect to the appellant's behaviour in committing the offence. The effect of that determination is that the appellant is subject to the notification requirements of the 2003 Act for a period of five years.
The appellant
[4] The appellant was born in 1988. He has previous convictions for public order offences and assault, none of which was sexual in nature.
The circumstances
[5] On the agreed Crown narrative, the incident occurred around closing time outside a public house in the centre of Penicuik. As the complainer, aged 28, was leaving the premises, she saw the appellant. He had his penis exposed. He was holding it in both hands towards her. She was embarrassed. To try to embarrass the appellant and make him stop, she made a comment about his penis. The appellant continued to expose himself and said to her "What are you going to do?" She complained to the police. They detained the appellant shortly afterwards.
[6] The plea in mitigation was to the effect that the appellant had been very drunk. He did not know the complainer. He had been with friends and had exposed his penis to them as a joke. There had been no sexual element in his behaviour.
The sheriff's reasons
[7] The sheriff decided that the appellant's conduct had displayed a significant sexual aspect. It had been directed towards a member of the public who was not known to him. He had persisted in it after the complainer had rebuked him.
The appeal
[8] The appellant lodged a note of appeal to the effect that there had been no significant sexual aspect to the charge to which he pled guilty. He then lodged a devolution minute, a bill of suspension and additional grounds of appeal. He avers (a) that the relevant provisions of the 2003 Act violated his rights under articles 6 and 8 of the European Convention on Human Rights and that the Lord Advocate's prosecution of it was therefore ultra vires; and (b) that in terms of section 57(2) of the Scotland Act 1998 the Sexual Offences Act 2003 (Commencement) (Scotland) Order 2004 itself was ultra vires and therefore that the sheriff's order was incompetent.
Submissions for the appellant
[9] Counsel for the appellant submitted that article 6(3)(a) gave the appellant the right to be informed in detail of the nature of the accusations against him, which included their legal characterisation (Pelissier v France Application no 25444/94, 25 March 1999). The Crown was obliged to give him notice that his conduct might be regarded as having a significant sexual aspect. Its failure to do so violated his rights under articles 6(1) and (3)(a). The scheme of the Act, by which offenders were subject to the notification requirements with no possibility of review, represented a disproportionate interference with the appellant's rights under article 8. The Supreme Court's reasoning in R(F) v Secretary of State for Justice ([2011] 1 AC 331) applied by extension to offenders who were subject to the notification requirements for a finite period. In prosecuting the appellant, accepting the guilty plea and impliedly moving for sentence the Lord Advocate violated the appellant's Convention rights. For the same reason the 2004 Order itself was also ultra vires. The sheriff's order was incompetent. On a proper construction of paragraph 60, the sheriff could not properly have held that the...
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