The Crown appealed after the sheriff refused to grant an order under section 288C of the Criminal Procedure (Scotland) Act 1995. The sheriff reasoned that there was not a substantial sexual element in relation to charges 1 and 4 on the indictment. However, the Crown appealed this decision.
One of the charges was a common law breach of the peace which involved the respondent inserting his fingers into the complainer’s vagina in order to check her genitals for sexual activity. The other charge involved a similar allegation and whereby it was alleged the respondent had uttered abusive remained if the complainer refused to have sex with him.
The Crown sought a section 288C order from the sheriff which would prohibit the respondent from representing himself. The Crown position was that there was a substantial sexual element to the charges. This was disputed by the defence on the basis that the digital penetration was not sexual due to the motivation and that the remarks where within the general coercive and controlling behaviour.
The sheriff refused to make the order on the basis that there was no suggestion that the respondent intended to conduct his own defence. It was reasoned that the digital penetration was more in keeping with a medical examination as there were no sexual remarks or conduct on the part of the respondent. The sheriff held that the conduct was not sexual.
In providing the opinion of the court, Lord Matthews stated: “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.”
In concluding he said: “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 determined that the sheriff had erred in refused to grant the order.