Robert Young V. Procurator Fiscal Falkirk
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Bracadale,Lord Justice Clerk |
| Judgment Date | 15 February 2012 |
| Neutral Citation | [2012] HCJAC 24 |
| Published date | 17 February 2012 |
| Date | 15 February 2012 |
| Court | High Court of Justiciary |
| Docket Number | XJ1268/10 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Bracadale Lord Osborne | [2012] HCJAC 24 XJ1268/10 OPINION OF THE LORD JUSTICE CLERK In the Appeal by ROBERT YOUNG Appellant; against PROCURATOR FISCAL, FALKIRK Respondent: _______ |
For the appellant: J Keenan sol adv, S Collins sol adv; Capital Defence, Edinburgh
For the Crown: Stewart QC AD; McGuire; Crown Agent
15 February 2012
Introduction
[1] On 6 August 2010 at Falkirk sheriff court the appellant pled guilty on complaint to the following charge, as amended.
"On 10th April 2009 at a point between Polmont Railway Station and Larbert Railway Station, whilst travelling on a First Scotrail Train Service between said Stations you ... did assault [the complainer] ... and did kiss her on the lips."
[2] This appeal was one of a those heard with Hay v HM Adv [2012 HCJAC 28].
The sentence appealed against
[3] On 21 October 2010 the sheriff imposed a probation order for twelve months. That 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. He therefore made the appellant subject to the notification requirements of the 2003 Act. Since the disposal in this case was probation, the notification period was the duration of the probation order (2003 Act s. 82(1), Table).
The appellant
[4] The appellant was aged 25 at the time of the offence. He had no relevant previous convictions.
The circumstances
[5] The offence was committed after 11pm. The complainer was a fifteen year old girl. She was travelling alone. She had boarded the train at Polmont. The appellant and two male companions boarded at Falkirk. They engaged the complainer in conversation. Because they smelled of alcohol the complainer was concerned and asked to be left alone. She stood up to move away, but the three men joined her. The appellant put his hand round her back. The men ushered her along the corridor. The appellant then lent over and kissed her on the lips. The complainer tried to push the appellant away. One of the other men intervened and pushed him back, saying "you cannae just go about doing that to folk." The complainer remained in the train corridor for the remainder of her journey. When she got home her mother saw that she was distressed.
[6] The appellant's agent submitted that there had not been a significant sexual aspect to the appellant's behaviour. The appellant had been heavily intoxicated. The complainer, who said she was aged seventeen, had given him a drink of alcohol. He kissed her as a gesture of thanks. He had not had any sexual motive. The procurator fiscal did not challenge this account of the incident.
The sheriff's decision
[7] The sheriff found that there had been a significant sexual aspect because (i) the assault was a kiss on the lips; (ii) the complainer was a lone and vulnerable young female; (iii) she had asked to be left alone at an early stage; (iv) she had subsequently been distressed; and (v) the actions of the appellant's companion in pushing him away and rebuking him indicated that an objective onlooker would have viewed the kiss as sexually motivated (Report, para 7).
[8] The sheriff did not accept that the appellant's kiss was a gesture of thanks. He did not comment specifically on whether he accepted that the complainer said that she was seventeen years old, or whether she had given...
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