High Court overturns sheriff’s refusal to grant order prohibiting man from defending himself against digital penetration charges

About this case:

• Citation:
  [2022] HCJAC 41
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

A Crown appeal was made after the sheriff refused to grant an order under section 288C of the Criminal Procedure (Scotland) Act 1995 in the Crown case against RS. The sheriff determined that there was not a substantial sexual element to charges 1 and 4 of the indictment, which was disputed on appeal.

The appeal was heard by Lord Woolman, Lord Pentland, and Lord Matthews. Prentice QC appeared for the Crown and Kennedy, advocate, for the respondent.

Controlling behaviour

The first charge relevant to the appeal libelled a common law breach of the peace, including an allegation that the respondent had inserted his fingers into the complainer’s vagina in order to check her genitals for sexual activity on various occasions between October 2003 and October 2010. The other charge contained similar allegations relating to a period from October 2010 to February 2020, libelled as contraventions of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, including an allegation that the respondent had uttered abusive remarks if the complainer refused to have sex with him.

A section 288C order was sought from the sheriff prohibiting the respondent from conducting his own defence should he at any stage dispense with legal representation. It was contended by the Crown that there was a substantial sexual element to the charges, which was disputed by the defence on the grounds that the digital penetration was not sexual standing the respondent’s motivation, and the sexual demands well within the general coercive and controlling behaviour libelled.

The sheriff refused to make an order, reasoning that there was no indication that the respondent intended to conduct his own defence and that the digital penetration was more in keeping with a medical examination, however perverse that might sound, as it was unaccompanied by any sexual remarks or conduct on the respondent’s part. While the conduct formed part of the respondent’s coercive and controlling behaviour, the sheriff held that it was not sexual.

Gross violation

Lord Matthews, delivering the opinion of the court, observed generally: “Had charge 1 specifically libelled indecent assault and charge 4 libelled a contravention of section 2 or section 3 of the Sexual Offences (Scotland) Act 2009, this issue would not have arisen. However, the fact that the digital penetration, if proved, would in all probability, amount to an indecent assault or a contravention of section 2 or 3 of the 2009 Act, as the case may be, is significant.”

On what constituted a “substantial” element, he said: “An analogy may be drawn with the notification provisions in section 80 of the Sexual Offences Act 2003. The court declined to define ‘significant sexual aspect’, save that it should be given its ordinary meaning in the context of the aims of the legislation concerned. We adopt the same approach to ‘substantial sexual element’ and we interpret it in the context of Parliament’s aims in enacting section 288C. The test is not whether the sexual element is a substantial part of the charge but whether the charge contains a sexual element which is itself substantial.”

Applying this test to the facts of the case, Lord Matthews said: “Non–consensual digital penetration on its own is a substantial and serious sexual crime. It does not have to be accompanied by words or actions of a sexual nature. What is libelled is a gross violation of the complainer’s sexual autonomy. An allegation of abusing someone because they would not give in to sexual demands also contains a substantial sexual element.”

He concluded: “Even if motivation were relevant, it is difficult to conceive how it could be taken into account at the stage of considering a section 288C order, when the accused denies that he committed the offences, but if his motivation for digital penetration was indeed to check whether the complainer had engaged in sexual activity then that could not be anything other than sexual.”

The court therefore held that that the sheriff erred in refusing to grant the order and remitted the case to proceed as accords.