Sheriff Appeal Court substitutes breach of the peace conviction for man’s sexual offence one

By Mitchell Skilling

Faisal Aziz was originally convicted under section 7(1) of the Sexual Offences (Scotland) Act 2009 of making a sexual communication for the purpose of obtaining sexual gratification to complainers TM and TE, aged 18 and 21 respectively. He appealed by stated case on the basis that the sheriff had erred in rejecting his no case to answer submission.

The appeal was heard by Sheriffs Principal Marysia Lewis and Nigel Ross along with Appeal Sheriff Alasdair MacFadyen. Hay, advocate, appeared for the appellant and Edwards QC for the Crown.

Inference drawn

The appellant had been driving a private hire vehicle in Edinburgh City Centre when he was hailed by the two complainers, who thought his vehicle was a taxi. The complainers, who had both consumed alcohol and required to get home, asked the appellant if he could take them home but explained they did not have any money. The appellant asked them “what else can you offer?” and when asked what he meant by that he replied “sex”.

Complainer TM stated that she felt unsafe and uncomfortable with the appellant’s comments and TE said she was frightened. The defence made a no case to answer submission in terms of section 160 of the Criminal Procedure (Scotland) Act 1995, which was opposed by the Crown. Having heard submissions from the appellant and the Crown, the sheriff found that all the component parts of the charge had been satisfied if the prosecution evidence was to be believed.

The sheriff considered that that an inference could be drawn that the appellant’s intention had been to obtain immediate sexual gratification by asking for sex and seeing the reactions of the complainers, or to obtain deferred sexual gratification by later engaging in sexual activity with either or both of the complainers. The sheriff subsequently convicted the appellant and imposed a community payback order, as well as making the appellant subject to the notification requirements under part 2 of the Sexual Offences Act 2003.

On appeal, counsel for the appellant submitted that the making of the communication of itself was not sufficient to allow the drawing of an inference that he made it for the purpose of sexual gratification. The section of the 2009 Act had been designed to criminalise communications which were completed acts with a consequence that the victim was involved in an invasion of their sexual autonomy.

It was conceded that the remark was capable of amounting to a breach of the peace by the appellant’s counsel. However, in that event it was submitted that no notification requirement under the 2009 Act ought to be imposed.

Short and unspecific

Delivering the opinion of the court, Sheriff MacFadyen began: “Looking at [the 2009 Act] and the sheriff’s findings in fact, there was no dispute that the appellant had intentionally made a verbal communication, that a reasonable person might consider it to have been sexual, or that it had been made without the consent of the complainers or a reasonable belief that they had consented. The issue was whether, as required by section 49 it could be reasonably inferred that the appellant made the communication for the purpose of obtaining sexual gratification, either immediately or at some later stage, or for the purpose of humiliating, distressing or alarming one or both of the complainers.”

He continued: “In the instant case the exchange was short and unspecific. Importantly, there was no evidence justifying the drawing of a reasonable inference that the appellant obtained sexual gratification from the making of the communication. There was no evidence justifying such an inference that he had the purpose of humiliating, distressing or alarming the complainers. While any sexual gratification may be deferred to a later time, it is still necessary, before convicting under section 7(1), to establish that such gratification, or such intent, was directly connected to the making of the remarks.”

Noting that hoping to be offered sexual favours was different from obtaining gratification, the sheriff went on to say: “In our view, in order to justify a conviction under section 7, the sexual gratification must be intrinsically connected to the making of the communication. This case turns on the extremely limited nature of what passed from the appellant to the complainers. The making of the remark did not invade the sexual autonomy of either of the complainers.”

On the appropriate disposal, the sheriff concluded: “Parties were agreed that the facts found proved by the sheriff amounted to the commission of the offence of breach of the peace, that is to say that the appellant’s conduct when interacting with the complainers had been severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. We have no difficulty in agreeing that to be the case. In that situation the sheriff was still correct to repel the submission under section 160, because in terms of section 160(1)(b) the appellant could have been convicted on another offence under the complaint.”

He added: “The appellant’s behaviour, while alarming, did not disclose an underlying sexual disorder or deviance from which society should be protected. In that sense therefore there was not a significant sexual aspect to the offender’s behaviour in committing the offence.”

Accordingly, the appellant was not ordered to be subject to the 2003 Act notification requirements.

Brodies opens new Inverness office

In the past 12 months, Brodies has worked with businesses, organisations and individuals, including Inverness College, Highlands and Islands Enterprise, Lerwick Port Authority and Stornoway Port Authority.

The firm acted for clients in the renewable energy sector, including windfarms on Shetland and the Orkney Islands Council community windfarm project, which is worth an estimated £371 million to the local economy.

In the food and drink sector, Brodies was appointed by the Tomatin Distillery Company Limited to provide legal and commercial advice to support a new market access strategy in the United States.

The firm also assisted Parklands Group – one of the largest independent care home providers in Scotland – in its buyout of British growth fund equity, and the refinancing of its facilities, to enable it to develop a new multi-million-pound care project in Inverness.

Brodies managing partner, Nick Scott, said: “We are grateful to our clients in the Highlands and Islands for their continued support and for seeking the advice of our lawyers on new and interesting instructions, as well as their day-to-day business, and personal and family matters.

“With our new office in Inverness, our clients will benefit from greater proximity to our lawyers, offering a state-of-the-art location to meet in person, whilst also providing enhanced technical capabilities that will, amongst other things, support virtual court hearings.

“We have taken many of the learnings from our new Capital Square office in Edinburgh, and considered them in the fit out of our Inverness office to support and optimise colleague wellbeing. We have created environments that will enhance collaboration between colleagues and clients, as well as supporting flexible working and providing room for us to grow.”

Initiative to reduce unnecessary court hearings piloted in three courts

The Summary Case Management pilot seeks to reduce the number of unnecessary hearings at summary level, which contributed to over 400,000 witness citations last year. It will achieve this by facilitating early disclosure of evidence and early judicial case management.

Key evidence will be available to be released to the defence prior to or at the first calling in all domestic abuse cases. Specified disclosure material can be requested where it is considered that such early disclosure may make a material difference to a plea or the early resolution of issues in all non domestic abuse cases.

Unlike the Evidence and Procedure Review Pilot, which the SCM Pilot replaces, in order to minimise the burden on defence agents, the defence will no longer require to lodge written records. These are replaced by a judicial case management note. Legal aid changes have been made to support the pilot.

In the 12 months to March 2022, there were over 36,000 not guilty pleas in summary sheriff court cases; that represents over 70 per cent of pleas entered. In the same period, only 5503 complaints were called where evidence was led.

More than 400,000 witness citations were issued for sheriff summary trials during 2021/22, over half of which were for police officers. Civilian witnesses, professional witnesses, health care professionals and scientists were also impacted.

The aim of the initiative is to achieve:

• a decrease in the number of witness citations issued;
• an increase in the percentage of cases resolved at the first appearance;
• an increase in the percentage of cases resolved at the CWP diet;
• a reduction in the number of trial diets at which no evidence is led.

While domestic abuse cases have been highlighted for this distinct approach it is anticipated that the lessons learned may lead to the same approach being adopted in other types of summary sheriff court criminal business.

Sheriff Principal Aisha Anwar, who has been leading the development of the SCM Pilot said: “The overall aim of this pilot is to reduce the number of cases that are set down for trial unnecessarily and reduce the volume of late pleas of guilty and late decisions on discontinuation.

“The automatic provision of key evidence in domestic abuse cases and ‘specified disclosure’ of material in any other case where that may assist in discussions, should put the defence in a significantly different position from the early stage of the case. It will allow the defence to engage more meaningfully with the Crown on both plea and resolution, failing which, on the agreement of evidence. It should lead to efficiencies for defence agents and for the Crown. For accused persons, there is the opportunity for matters to be resolved at the earliest possible stage in the process.

“Cross justice collaboration has been essential to the design and development of the new pilot and I thank all those involved for so willingly providing their time”.

John Logue, deputy crown agent local court said: “The pilot is a multi-agency collaboration which will reduce the burden and inconvenience of trial preparation on victims and witnesses.

“COPFS is pleased to have been involved from the outset in the development of this initiative and we look forward to its expansion to every Sheriff Court once it has been evaluated.”

Police Scotland assistant chief constable Kenny MacDonald added: “We are working closely with our criminal justice partners on the development and delivery of the Summary Case Management pilot which Police Scotland fully supports. We hope this will bring greater efficiencies to summary trials, reduce the number of witnesses cited for court and enable matters to be resolved at the earliest possible stage in the process for the benefit of all parties.”

The full report can be viewed here.  

New judicial complaints reviewer appointed

The reviewer offers an “independent, impartial and free service” for anyone unhappy with the way their complaint about the conduct of a member of the judiciary – including judges, sheriffs and justices of the peace – has been handled by the Judicial Office for Scotland.

The role has powers to carry out an independent review into how complaints have been handled. The reviewer then makes a referral to the Lord President, to consider what action may be required, if it is found the relevant rules have not been followed.

Mr Mollison is a panel chair for the general teaching council for Scotland has more than 20 years’ experience in senior risk and quality assurance roles for large companies.

He has been appointed to the post for three years, and his appointment follows former judicial complaints reviewer Ian Gordon stepping down from the role in August 2022.

Justice secretary Keith Brown said: “To uphold a modern, person-centred justice system it is important that the judiciary are held to the high standards expected of them.

“We are committed to improving everyone’s experiences of the justice system where possible, and as part of that it is vital there is a completely independent, fair and transparent process where people can access support and make complaints when needed.

“Mr Mollison brings a wealth of experience dealing with professional complaints to this role and I am sure that he will play an important part in ensuring the rules in place are being properly followed.

“I’d like to thank Ian Gordon for his five years of service and the support he’s provided to the justice service during his time.”

Opinion: The truth about jurors and body language

Our recent study of the way in which jurors assess credibility in criminal trials has been the subject of some attention in Scottish Legal News. In this study, we reported on the findings of a large-scale mock jury study in respect of the cues that jurors use to assess witness credibility. We found plenty of evidence of good practice in this respect. We also found an inappropriate reliance on the body language of witnesses to draw inferences about their truthfulness.

In the 31 August 2022 SLN article Juries should be told to ignore body language, academics argue, Thomas Ross QC claimed that “the conduct of pretend jurors in a small sample of pretend trials is being used as an argument to abolish [jury trial]” and replace it “with the trial system in North Korea and Saudi Arabia”. (We did not argue for trials without juries, only for rethinking one line in the standard directions currently given to juries.) The following day, in Mock trials no substitute for the real thing, Douglas Cusine wrote that “in the latest research into body language, it is suggested, rather bizarrely in my view, that jurors should be directed to ignore body language”. (Actually, our paper suggested that directing jurors to ignore body language would be unhelpful and perhaps even harmful.)

Our research is, indeed, based on mock trials. These do provide valuable evidence about how jurors in real trials would assess witness credibility. Mr Ross suggests that our jurors were more likely to rely on body language because they knew that if an actor “was fidgeting or licking his or her lips, as there was absolutely nothing for an actor to be nervous about, then presumably the pretend jurors could easily discount nerves as an explanation”. But this was not true – in 27 of the 64 trials, jurors did draw on the “nervousness” of the witnesses when assessing their credibility. There is no magic wand that suddenly changes the beliefs held by jury eligible members of the public (as our jurors were) when they go into a real jury room. The Jury Manual recommends that Scottish jurors be directed that they can look at body language to assess credibility, so it is hardly surprising that our jurors did so. They were conscientiously following the directions they had been given.

We suspect that we will not succeed in persuading either Mr Ross or Mr Cusine that mock jury research is valuable. But even if we do not, we would like to correct the record about our recommendations. Our rather mild suggestion in the paper is that “we should certainly not be specifically directing jurors – as judges currently do in the Scottish courts – to pay attention to factors such as body language in assessing witness credibility”. Nowhere do we suggest that jurors be directed to ignore it. In fact, we said that “simply directing jurors to ignore behavioural cues is unlikely to be productive (and may even, perversely, turn their attention more towards them)”. And we certainly do not suggest in the paper that juries be abolished. What we do suggest (again, we thought uncontroversially) is that jurors may benefit from more assistance in understanding what factors are useful in assessing credibility.

And the idea that body language is a good indication of truthfulness is a false belief. Eye contact (or the lack of it), fidgeting, hand movements and other bodily ‘tics’ are not accurate ways of assessing credibility, as demonstrated by the vast array of research we outline in the paper. Failing to address these false beliefs risks inaccurate trial outcomes – whether this means acquitting the factually guilty or convicting the factually innocent. We are sure that both Mr Ross and Mr Cusine would agree that this is not a desirable outcome.

James Chalmers and Fiona Leverick are professors at the University of Glasgow. Their co-author, Vanessa Munro, is on holiday. After reading recent articles, they wish they were too.

Tom Stocker: Crackdown on furlough fraud looms

In total, officials received 13,775 tip-offs from employees about fraud against the furlough scheme committed by their employers. HMRC said the sheer number of furlough claims at the height of the pandemic - and the need to make the payments immediately - made it initially very difficult to spot fraudulent or mistaken claims.

In one major case uncovered by HMRC, a fraudster in India - who had never been to the UK - claimed £27.4 million in furlough payments after he registered four companies in London and claimed furlough for more than 2,700 non-existent employees.

HMRC later recovered £26.5m of this through a forfeiture order and as of September 2021 £1.3 billion in furlough cash had been repaid voluntarily, including from businesses that were entitled to furlough payments.

As the pandemic eased, HMRC added a significant amount of resource to its investigation teams to pursue fraudulent or inaccurate furlough claims and whistleblowers have played a major role in helping HMRC catch those who defrauded the furlough scheme or were otherwise not entitled to the benefits claims.

HMRC is increasingly looking to take strong and public action in respect of those it considers may have taken public money they were not entitled to, and significant numbers of employees who found themselves unwittingly playing a part in a breach of the rules or even fraud will have reported them in response.

As part of a process of encouraging whistleblower reports from employees, HMRC has published information about employers’ furlough claims online. According to officials, employees are increasingly using this information to make fraud reports through the department’s digital reporting service.

Directors or business owners found guilty of furlough fraud can face significant penalties, including being made personally liable to repay the overclaimed furlough funds and custodial sentences.

In total, 268 UK company directors have so far been banned from running companies for Covid-related fraud. Some of these directors committed furlough fraud, while others were found to have defrauded the Coronavirus Business Interruption Loan Scheme and Bounce Back Loan Scheme.

HMRC is now stepping up its enforcement activity, aiming to recover misappropriated funds by issuing penalties and pursuing prosecution or director disqualifications for businesses that claimed furlough while telling - or allowing - employees to keep working. HMRC is also investigating businesses that have uncovered a past fraud but have not come forward to repay the funds.

Any businesses that find they have inadvertently claimed furlough incorrectly should seek advice on how best to quantify the breach, before voluntarily engaging with HMRC to repay the funds and help avoid the harshest penalties.

This is the kind of fraud that HMRC, in the most egregious cases, will feel should result in criminal prosecution. There is significant public interest in the justice system dealing with those who broke the rules to take advantage of the furlough system at a time of national crisis.

Tom Stocker is a partner at Pinsent Masons

Douglas Waddell: Professional Standards Authority successfully appeals Medical Practitioners Tribunal decision

Background

The PSA was created by the National Health Service Reform and Health Care Professions Act 2002. One of its roles is to review disciplinary decisions taken by medical and health care regulators such as the General Medical Council, the General Dental Council and the Nursing and Midwifery Council, and their associated tribunals. If the PSA considers that a disciplinary decision about a professional such as a doctor, dentist or nurse does not adequately protect the public, it can appeal that decision. In Scotland, these appeals are dealt with by the Court of Session.

Appeal by PSA

In this case, the MPT dealt with allegations of repeated dishonesty raised by the General Medical Council against a doctor. The first allegations were dealt with by the MPT in 2019 and the doctor was suspended. Further allegations of dishonesty were considered by the MPT in the second case, which came about because of the doctor’s actions in response to her initial suspension (which included continuing to practise while suspended). However, in the second case, and despite this dishonesty, the MPT did not erase the doctor’s name from the Register (instead imposing a further suspension). The MPT took the view that the doctor had, in the first case, demonstrated a capacity for insight and remediation and so was capable of doing the same again.

The PSA appealed against the MPT’s second decision. It argued that the MPT should have erased the doctor, – meaning that the doctor could not practise again unless re-admitted. It considered that the suspension order was not sufficient for the protection of the public because the doctor had been repeatedly dishonest. In those circumstances, the MPT had no basis to conclude that the doctor was capable of insight and remediation. The doctor’s conduct was fundamentally incompatible with continued registration.

The GMC remained neutral in the appeal. The Court of Session agreed with the PSA and ordered the erasure of the doctor’s registration. It set out its reasoning as follows:

“In short, we consider that [the doctor]’s persistent dishonesty was so grave as to be wholly incompatible with her continued registration as a doctor. Honesty lies at the very heart of the profession of doctor. Such repeated dishonesty as occurred in the present case carries with it the potential to undermine completely public confidence in the medical profession. In the circumstances, we are satisfied that erasure was the only sanction that could properly have been imposed.”

The court also stated that a twelve month suspension was not sufficient to maintain public confidence in the medical profession and maintain proper professional standards and conduct. It agreed with the PSA that the doctor could not be said to show any real capacity for insight or remediation.

This case is a useful reminder of the approach the court takes towards dishonesty in professional discipline cases. In cases of repeated dishonesty, it is likely that the court will consider that erasure or striking off is an appropriate sanction and, in some instances, the only appropriate sanction. Where the regulator does not apply a sanction of erasure/striking off in such cases, the regulator may have to explain why that was not an appropriate sanction.

Douglas Waddell is an associate at Brodies LLP

Pandemic trainees begin careers at Lindsays

They started their new roles this week in positions across various departments at Lindsays’ offices in Edinburgh, Glasgow and Dundee.

The four newly-qualified lawyers who have joined Lindsays permanently are:

• Ronan Duff (Personal Injury) - Glasgow
• Stephanie Goudie (Commercial Property) - Glasgow
• Deborah O’Donnell (Private Client) - Dundee
• Curtis Preston (Corporate) - Edinburgh

Lindsays has a proud history of training lawyers who finish their careers as they started them – at Lindsays.

Alasdair Cummings, Lindsays’ managing partner, also trained at the firm.

He said: “We are incredibly proud to welcome our four newly-qualified lawyers to their permanent roles. They have completed their training in circumstances that were once unimaginable - joining us remotely, getting to know their colleagues and mentors via video and learning during their early days without having the benefit of our experienced professionals physically beside them.

“Each of them has shown tremendous dedication, professionalism and resilience to succeed despite all of the unknowns that our team and clients were contending with. They are experiences which I am sure will actually serve them well during their careers.

“I am so pleased that they have chosen to begin the next chapter of their professional lives with us. It’s testament not only to excellent training, opportunities and high standards of service we deliver for clients, but the way in which the whole Lindsays team pulled together to support each other during the lockdowns and ongoing recovery from the pandemic.”

Event: More than just a lawyer… first-time buyers

The speakers are:

• Nadia Atanasov, Evelyn Partners – Nadia is a financial planner and will look at saving for a property. She will also cover the important financial aspects first-time buyers should consider in the initial stages of purchasing a property.
• Will Thomas, Virgin Money – Will is a private development manager and will cover the mortgage application process as a first-time buyer. He will also cover the frequent challenges and questions which arise in the process.
• Luke Howie and Calum McKenzie, Shepherd Surveyors – Nicholas is an associate surveyor working within the Edinburgh Residential team. Shepherd is the leading Chartered Surveyor and home report provider in Scotland. He specialises in residential property surveys, home reports and mortgage valuations.
• Mairi Innes, Aberdein Considine – Mairi is an associate working in Perth. Mairi’s principal practice area is residential property, including sales, purchases, re-mortgages, transfers of title, and title rectifications. She has lots of experience helping first-time-buyers buy their first home and is an expert in various schemes such as Help to Buy, LIFT and H2B ISAs.

Register here

Rights watch

China denounces U.N. report detailing human rights abuses of Uyghurs

BEIJING (AP) — The U.N. accused China of serious human rights violations that may amount to “crimes against humanity” in a long-delayed report examining a crackdown on Uyghurs and other mostly Muslim ethnic groups. Beijing on Thursday denounced the assessment as a fabrication cooked up by Western nations.

India: the government must end the repression of rights in Jammu and Kashmir

The Indian government has drastically intensified the repression of rights in Jammu & Kashmir in the three years since the change in status of the region, Amnesty International said in a new briefing released today.

Greece should face more checks over asylum seeker treatment – EU official

Greek authorities should face more checks over how they manage asylum seekers trying to reach Europe, the lead official in charge of human rights at the EU’s border agency has said.

Vote against UN Attempt to Legalize “safe abortion”: Catholic Activists to African Nations

Catholic social activists across Africa under their umbrella association, CitizenGo Africa, are calling on nations on the continent to vote against “safe abortion” as fronted in one of the agenda of the 77th session of the United Nations General Assembly (UNGA).

‘Hidden genocide’: Death of Indigenous man in Brazil spurs outcry

Death of ‘Man of the Hole’ renews alarm over threats Indigenous people face under President Jair Bolsonaro’s government.

President Biden’s visit has a negative impact on human rights movement in the MENA region

The human rights movement in the Middle East and North Africa (MENA) region has paid a heavy price for the unlimited and unconditional support provided by the United Kingdom (UK) and United States of America (US) to repressive governments across the region.

Argentina says it detained man who tried to shoot Vice President Kirchner

Argentina detained a man who tried to shoot Vice President Cristina Fernández de Kirchner on Thursday evening, President Alberto Fernández said, calling the attempted attack the “most serious incident to happen since we recovered democracy.”

Colonial tensions and contemporary challenges: What we learned from Emmanuel Macron’s visit to Algeria

French president Emmanuel Macron visited Algeria at the end of August. Joseph Downing explains why the visit signalled several significant shifts in French-Algerian relations.

Erdogan: Europe’s top rights court unfair in decisions regarding Türkiye

President Erdogan says the European Court of Human Rights makes unfair decisions when it comes to Türkiye even as important reforms have been made in the country over the past 20 years.

Serbia: Rescind Pride Ban, Guarantee Participant Protection

(Berlin) – The Serbian government should immediately rescind its ban on EuroPride events scheduled for Belgrade in September 2022, Human Rights Watch said today. Instead, the authorities should work with organizers to ensure adequate safety for participants.

Quote of the day

If you have “haters”, you will make things worse by trying to gratify them. The best strategy is to drive them to hate you even more.

Nassim Nicholas Taleb

And finally… shaky start

Footage from the parliament shows a slight tremor as MP Bettina Petzold-Mähr makes the case for making earthquake insurance a legal requirement, eliciting smiles and laughs.

A few moments later, a more dramatic quake causes alarm and leads to the suspension of proceedings and the evacuation of MPs from the chamber.

The two earthquakes were measured at 2.4 and 3.9 on the Richter scale, Euronews reports.

There are no known injuries or incidents of property damage arising from the quakes.

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