APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Menzies Sheriff Principal Lockhart	[2012] HCJAC 86 XJ214/12 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST BILL OF SUSPENSION by JAMES MCGUIRE Appellant; against PROCURATOR FISCAL, GLASGOW Respondent: _____________

Appellant: D Taylor, Solicitor Advocate; Paterson Bell for Evan Cameron, Glasgow

Respondent: Young, QC; AD Crown Agent

11 May 2012

On the 13 January 2012 the appellant, who is aged 25, was found guilty, after a 2 day trial at Glasgow Sheriff Court, of a breach of the peace by exposing his penis and masturbating in Sauchiehall Street. The circumstances of the offence are detailed in a report from the Sheriff to the social work department following upon conviction. The report reads as follows:

"[2] ...as [the police] were walking towards the International Arts Centre at No. 35 Sauchiehall Street they saw a drunk man...leaning with his back against the window of the Arts Centre. He seemed to be using the window to hold himself up. The accused's belt and trouser buttons were undone and he was holding his penis in his right hand and appeared to be masturbating with it.

[3] On seeing the matters referred to in paragraph [2],...the first thoughts of both police officers were that the accused was urinating. However, as they approached him from a distance of about 15 to 20 meters, they saw he was in fact masturbating. In that connection, both police officers describe in some detail precisely what the accused was doing (viz stroking his penis with his right hand fully clasped around it and having his right hand clasped round the shaft of his penis, moving his hand up and down). Both police officers stated that the accused continued with these actions as they approached him. He had his penis in his right hand for about 20 seconds. They both identified themselves as police officers and took the accused into a doorway out of sight of members of the public. The both described the accused's penis as being semi-erect and confirmed that he was extremely drunk. Sauchiehall Street was very busy at that time of night, with many pedestrians walking past in both directions, some of whom appeared to be shocked at the accused's actions...".

[2] The Sheriff determined that the offence had a significant sexual aspect in terms of paragraph 60 of schedule 3 to the Sexual Offences Act 2003. At the time of his decision, he did not have the benefit of this court's rulings in Thomson v Dunn 2012 SCCR 298 and Hay v HM Advocate 2012 SCCR 281. In that regard, addressing the dicta which he later found in these cases (to which reference will be made later), the Sheriff accepted that it was correct to say that there was: "no underlying sexual deviancy and that the catalyst for the [appellant's] conduct was the fact that he was heavily/severely intoxicated". That having been said, however, the Sheriff went on in his report to this court to state that: "it is not uncommon for people in the city to be heavily/severely intoxicated without their resorting to this sort of conduct". The Sheriff continued by stating that he considered that there was a significant sexual aspect to the offence.

[3] The submission made was not that the offence did not involve a sexual aspect, as it clearly did. The focus was on whether that sexual aspect was "significant" in the context of the dictum of the Lord-Justice Clerk (Gill) in Hay v HM Advocate (supra at para [52]). The submission founded upon the acceptance by the Sheriff that there was no underlying sexual deviancy. On that basis, it was argued, the Sheriff ought not to have found the sexual aspect to be significant. Reference was made also to the Sheriff's comment that, in light of the dictum of the Lord Justice-Clerk, it was "an open question" as to whether or not in the particular circumstances the appellant ought to have been made subject to the notification requirements.

[3] The starting point for the court's analysis of whether the sexual aspect of an offence is significant is the dictum of the Lord Justice-Clerk in Hay v HM Advocate. It is worth quoting precisely what he said (at paragraph [52]):

"...it would be futile to attempt to define the word 'significant' as it is used in paragraph 60. That is a question best left for the judgment of the sentencer. Since the purpose of registration is to protect the public against a perceived danger, the question whether a sexual aspect of the accused's behaviour was significant should be assessed in that light. One way to approach that is to consider whether the sexual aspect is important enough to merit attention as indicating an underlying sexual disorder or deviance from which society is entitled to be protected (Wylie v M [2009 SLT (Sh Ct) 18] Sheriff Pyle at paragraph 13). In this difficult exercise, in my view, sentencers should consider the accused's behaviour in the context of the purpose and effects of registration, keep a sense of proportion and use their common sense".

[4] The Sheriff, of course, had heard all the evidence in the case. He had regard to the social enquiry report. That report did refer to the interaction of alcohol with the offence itself, but it is not without significance that, under the heading 'Serious harm/imminence', the social worker stated that: "the offence now under consideration would indicate he is susceptible to unpredictable and sexually unacceptable behaviour whilst in a state of intoxication".

[5] The behaviour in this case was, no doubt, caused partly by the disinhibiting effects of alcohol. This court is reasonably familiar with those effects in the context of cases which come before it. In this situation, however, as the Sheriff has observed, the type of behaviour under consideration is not of a type which is commonly, or indeed even occasionally, encountered in connection with intoxicated persons in city centre public streets. The fact that this is so points towards there being something beyond mere intoxication as a factor in the offence. The Sheriff decided that the sexual aspect was, on the evidence that he had heard, "significant" and considerable importance must be placed on the sentencer's decision in the particular circumstances. This court is unable to fault the Sheriff in his ultimate conclusion as a matter of fact. Accordingly the court will refuse to pass the bill.

rfc