Faisal Aziz was originally convicted of an offence under section 7 (1) of the Sexual Offences (Scotland) Act 2009. He was convicted of making a sexual communication for the purpose of obtaining sexual gratification to the complainers who were aged 18 and 21. The case was appealed on the basis that the sheriff had erred in rejecting the no case to answer submission.
The appellant was driving a private hire vehicle in Edinburgh and he was waved down by the complainers. The complainers had consumed alcohol and asked the appellant if he could drive them home. However, the complainers explained that they did not have any money. The appellant stated ‘what else can you offer?’ and when asked what he meant by this he said ‘sex’.
One of the complainers told the court that she felt unsafe and uncomfortable. The other said that she was frightened. A no case to answer submission was made on behalf of the appellant; however, this was rejected by the trial sheriff.
The sheriff considered that an inference could be drawn that the appellant’s intention had been to obtain sexual gratification by asking for sex and witnessing their reactions. Alternatively, the comment was made to obtain deferred sexual gratification by engaging in sexual activity with the complainers. The sheriff convicted the appellant and imposed a community payback order. The appellant was made subject to notification requirements.
Counsel for the appellant submitted that the communication was not sufficient to allow an inference to be made that it was sexual gratification. The appellant’s counsel conceded that the comment could amount to a breach of the peace. It was argued that the appellant should not have been made subject to notification requirements.
In providing the opinion of the court, Sheriff MacFayden stated: “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 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.”
In concluding the sheriff stated: “Parties were agreed that the facts found proved by the sheriff amounted to the commission of the offence of breach of the peace…We have no difficulty in agreeing that to be the case.”
As a result, the notification requirement aspect of the sentence was quashed.