The Respondent was convicted of an offence under section 7(1) of the Sexual Offences (Scotland) Act 2009. It was heard that he was a private taxi driver who picked up two female passengers, aged 18 and 21. The passengers stated that they did not have any money and he replied ‘what else can you offer’. When asked what this meant he stated ‘sex’. The complainers then exited the taxi. 

At trial the sheriff determined that the offer from the respondent was a sexual verbal communication without any reasonable belief that either of the complainers consented. He considered that the purpose of the comment was to obtain deferred sexual gratification. The basis for this being that he would later engage in sexual activity with one or both of them. It was found that the purpose could have been for immediate gratification by observing the complainer’s reaction. 

The Sheriff Appeal Court quashed the conviction on the basis that there was nothing to support the sheriff’s reasoning that the respondent obtained sexual gratification. The comment was short and not intrinsically connected to sexual gratification. The court concluded that the comment did not invade the sexual autonomy of the complainer’s 

The Crown argued that the Sheriff Appeal Court should have considered whether the communication was made intentionally and without consent. It was submitted that the respondent’s conduct met the test for sexual deviancy. 

In providing the opinion of the court, Lord Carloway stated: “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 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 allowed the appeal and restored the conviction.