High Court restores conviction of taxi driver who asked prospective passengers for sex instead of money

About this case:

• Citation:
  [2022] HCJAC 46
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Respondent Faisal Aziz had previously had his conviction quashed after a successful appeal in the Sheriff Appeal Court. It was argued that the SAC had erred in its approach to sexual autonomy in finding that the communication made by the respondent was insufficiently connected to sexual gratification.

The Crown appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Matthews and Lord Boyd of Duncansby. Edwards KC appeared for the Crown and Mackintosh QC and Culross, advocate, for the respondent.

Intrinsically connected

The respondent was originally convicted by the sheriff at Edinburgh Sheriff Court of a contravention of section 7(1) of the Sexual Offences (Scotland) Act 2009. On 5 October 2019, he had picked up two female passengers, TM and TE, aged 18 and 21 respectively. They told him that they did not have any money, to which he replied with words to the effect of “what else can you offer”, and upon being asked what he meant by that replied “sex”. Both complainers then got out of the taxi and the respondent drove away.

The sheriff found in fact that the respondent’s offer was a sexual verbal communication without any reasonable belief that either complainer consented to his approach. He inferred that the respondent’s primary purpose was to obtain deferred sexual gratification by later engaging in sexual activity with one or both of the complainers. A secondary purpose was to obtain immediate gratification by watching their reaction to what he had said.

It was held by the Sheriff Appeal Court that there was no evidence justifying the sheriff’s inference that the respondent obtained sexual gratification from making the communication. The making of the remark was short and inspecific, was not intrinsically connected to sexual gratification, and did not invade the sexual autonomy of either of the complainers.

For the Crown it was submitted that although the exchange between the complainers and respondent had been brief, its meaning was clear, direct and specific. The SAC ought to have considered whether the communication was intentionally made without consent, and if it was this was an invasion of the complainers’ sexual autonomy. The respondent’s conduct met the test for sexual deviancy from which the public was entitled to be protected.

Entitled to be protected

Delivering the opinion of the court, Lord Carloway stated: “The sheriff found in fact that the respondent, intentionally and for the purpose of obtaining both immediate and deferred sexual gratification, directed a sexual communication to the complainers without any reasonable belief that either of them consented to his approach. There is no challenge to that finding in the stated case. A request at the adjustment stage that the finding be deleted does not constitute such a challenge. It ought to have been posed in the question: “On the evidence, was I entitled to make finding in fact 15?” The absence of such a question ought to have been fatal to the appeal to the Sheriff Appeal Court.”

However, he continued: “The SAC were not entitled, in the absence of a properly directed question, to go behind the findings in fact and look directly at the evidence. The appeal from the sheriff ought to have been refused on that basis. That said, the sheriff, having considered the application for a stated case, might have framed an appropriate question relating to the findings in fact given the nature of the respondent’s complaint.”

Considering whether the conduct was a breach of sexual autonomy, he said: “There is little difficulty in inferring from the respondent’s conversation with the complainers that one purpose may have been to obtain sexual gratification. That is exactly what his request was. Whether the expectation was for immediate, or deferred, gratification does not matter. The only defence open, once this type of communication had been proved along with the complainers’ lack of consent, would have been to raise the issue of reasonable belief that the complainers consented.”

He added: “That might have been open had the communication been made in a social setting and between persons known to each other. It could hardly have been available in a situation involving strangers in the relationship of potential taxi driver and passenger in the public street where the passenger’s obvious desire is to go home and not to indulge in sexual activity. The sheriff arrived at the correct decision and this appeal ought to be allowed also on this basis.”

Lord Carloway concluded: “The respondent was carrying out his employment as a licensed taxi driver with responsibilities towards the persons whom he might encounter in his trade. Those persons, especially if they are vulnerable as a result of youth and alcohol, are entitled to be protected from predatory males seeking sexual favours in exchange for fares.”

The court therefore allowed the appeal and restored the sheriff’s conviction.