Criminal court: Dangerous or careless?

In previous articles, I have commented on procedural matters and trends in the management of cases. This month I will look back to an important authority in road traffic law, the impact of which largely went unnoticed at the time, and then consider some recent appeal cases.

Death by dangerous driving

The appellant in ASG v HM Advocate [2019] HCJAC 91; 2020 SCCR 112 was charged with causing death by dangerous driving, in contravention of s 1 of the Road Traffic Act 1988, having driven his car without corrective eyewear when his vision was below the required standard, and failed to observe the deceased, a slow-moving pedestrian crossing the road. He was found to be unfit for trial and dealt with at an examination of facts in terms of s 55 of the Criminal Procedure (Scotland) Act 1995.

Evidence was led that the deceased had been struck when he was about halfway across, and that there were no obstacles to prevent the appellant seeing him. Further, although there had been spectacles in the back of his car, the appellant had not been seen wearing any, none were seen elsewhere in the car or on the road, and he had made no reference to these when speaking to police at the scene. There was nothing to demonstrate loss of control of his car.

The appellant indicated to the police that he simply did not see the deceased crossing the road. He was required to take an eye test under s 96 of the 1988 Act in a nearby car park. He knew the purpose of the request, had not been wearing spectacles, did not indicate that he required to use them and did not ask to use them when taking the test. He failed and was told he would not be permitted to drive further that day. The police contacted the DVLA and were notified the following morning of revocation of the appellant’s licence. When told about this, the appellant did not protest that he had been wearing spectacles at the time.

An optometrist who regularly examined the appellant confirmed that he would have been fit to drive, provided he wore the appropriate corrective eyewear.

The appellant did not give evidence, and the judge presiding at the examination was satisfied beyond reasonable doubt that he had committed the act charged. The appellant appealed to the High Court under s 62 of the 1995 Act, on the ground of insufficient evidence to allow the inference of dangerous driving. It was not disputed that he had committed the offence of causing death by careless driving.

The court was satisfied that an inference could be drawn that the appellant was not wearing the necessary corrective eyewear. That amounted to driving in a way which fell far below the standard of a competent and careful driver and this would be obvious to a competent and careful driver, all in terms of the test in s 2A of the 1988 Act.

Dangerous or careless?

However, the court went further and indicated that the conviction was not dependent on proof of driving with defective vision without corrective eyewear. At para 21 Lord Brodie said:

“The fact of a collision with a slow-moving pedestrian in the course of a car completing a turn from a major to a minor road where there is nothing to obscure the driver’s vision and no reason to explain the accident other than the driver not having seen the pedestrian is, in our opinion, sufficient to lead to the conclusion that the driver was driving in a way that fell far below what would be expected of a competent and careful driver and this would be obvious to such a competent and careful driver.”

The importance of that paragraph is that such driving was and still is not uncommonly prosecuted as careless driving under s 3 of the 1988 Act. However, what Lord Brodie said is consistent with a line of authorities.

In Angus v Spiers 2007 JC 19 the appellant failed to stop at a red light, drove onto a pedestrian crossing and struck a child crossing the road there. The Crown rejected a plea to s 3 careless driving and, after trial, the appellant was found guilty of s 2 dangerous driving. His appeal against conviction was unsuccessful. Lord Johnston, delivering the opinion of the court, noted at para 10: “The presence of vehicles already stopped at the crossing and, much more importantly, the fact that he struck the child on the crossing are all material to this consideration.”

In Lizanec v PF Edinburgh [2016] SAC (Crim) 33, an unsuccessful appeal to the Sheriff Appeal Court against a conviction under s 2, the appellant allowed her vehicle to cross onto the opposite carriageway, colliding with an oncoming vehicle. The sheriff found that she had failed to maintain proper concentration and this had been more than momentary. She had failed to negotiate a sweeping right hand bend. The sole cause of the accident was her failure to drive on the correct side of the carriageway as a result of allowing herself to be distracted by good weather conditions and beautiful scenery.

Disclosing sexual images 

Turning now to some recent cases, “revenge porn” has recently hit the headlines in England. In DF v PF Dundee [2023] SAC (Crim) 1; 2023 SLT (SAC) 17 the Sheriff Appeal Court provided some guidance on s 2(1) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, making it clear that it was wider in scope than the relevant English legislation.

The appellant was charged with disclosing a quantity of photographs which showed or appeared to show the complainer in an intimate situation and which had not previously been disclosed by her or with her consent, in that he uploaded intimate images of her to a website, intending to cause her, or being reckless as to whether she would be caused, fear, alarm or distress. The charge was aggravated by involving abuse of his partner or ex-partner.

Section 2(1) provides that an offence is committed if a person (A) discloses such images (not previously disclosed by or with consent of the other person (B)), “and A intends to cause B fear, alarm or distress or A is reckless as to whether B will be caused fear, alarm or distress”.

The appellant and complainer had been in a relationship for around four years ending in October 2020, during which they took explicit and intimate photographs and videos of each other naked and participating in sexual acts. These were for private use. 

The appellant had a user profile on an adult content website designed to facilitate sexual encounters between users. Users could upload explicit images and videos to their account profile. Users had some access to materials uploaded by other users and could gain increased access to images by being added
as “friends”.

Between March 2018 and June 2020, during the relationship, the appellant uploaded explicit images of himself and the complainer in intimate situations without her knowledge or consent.

The complainer’s friend who had a user profile on the website received a “friend request” from the appellant’s account. She accepted and was then able to view the images. She recognised the appellant and the complainer. She contacted the complainer with screenshots of the images. Four images were of the complainer’s body.

Her face appeared in one image, partly concealed by a black band covering her eyes. The complainer was distressed and upset.

She contacted the appellant, who apologised and removed the images. 

The focus of the appeal against conviction was whether the appellant had been reckless as to whether the complainer would be caused fear, alarm or distress by disclosure of the images. The appellant referred to s 33 of the Criminal Justice and Courts Act 2015, which extends to England & Wales and does not mention recklessness. It was submitted that the Scottish Parliament had intended to introduce a similar provision, to criminalise “revenge porn” involving a vengeful ex-partner distributing consensually taken photographs without the other partner’s permission.  

Refusing the appeal, the court found the reference to the English legislation to be neither helpful nor appropriate. At para 25 Sheriff Principal Anwar said: “An offence is committed in terms of s 2(1) of the 2016 Act if the individual who has disclosed or threatened to disclose intimate images has acted recklessly, that is, if he failed to give thought to or was indifferent as to the foreseeable effect upon the complainer of such a disclosure. Recklessness is to be inferred or deduced from the conduct of the individual at the time of the circumstances giving rise to the offence.”

The court did not accept the submission that the appellant had acted “carelessly” as opposed to recklessly. Although genuinely remorseful and not motivated by a desire to embarrass or humiliate the complainer, “he was… motivated by a desire to further his own ends; to gain popularity on the website by uploading what he considered to be images which would make him more attractive and appealing to other users. In so doing, he failed to give thought to, or was indifferent as to the foreseeable effect upon the complainer of such a disclosure” (para 26).

Although he obscured the complainer’s eyes in the only image which showed her face, he failed to give any thought to, or was indifferent to “jigsaw identification”. The images were uploaded during the relationship. Any user who knew they had been in a relationship could have deduced that it was the complainer in the images, and the complainer’s friend managed to identify her from the image where her eyes had been obscured. The appellant’s evidence that he had not expected the complainer or her friends to view the images highlighted that “he readily understood that those who knew the complainer might have identified her”, and the complainer was able to identify herself.

It was irrelevant that the images were only accessible by those invited by the appellant as friends: privacy was expected by the complainer, the appellant chose to disclose the images on the website, he had no control over what other users might have done with them, and he “ought to have been aware of the possibility that the images might also be shared more widely or that they might find a way back on other internet platforms or social media to the complainer or those she knew” (para 28).

This legislation can perhaps be seen as another example of protecting sexual autonomy, in that no consent had been given for the intimate images to be disclosed.

Indecent communications

A further consideration of sexual autonomy was undertaken in the appeal to the High Court from the Sheriff Appeal Court in PF Edinburgh v Aziz [2022] HCJAC 46; 2023 JC 51, where the appeal was upheld, restoring the conviction of the respondent. The offence was “communicating indecently etc” under s 7 of the Sexual Offences (Scotland) Act 2009.

Section 7 makes it criminal to direct a “sexual verbal communication” at a person, without any reasonable belief that the person consents to the communication, for the purposes of: (a) obtaining sexual gratification; or (b) humiliating, distressing or alarming the person.

By s 49 of the Act these purposes are established if “in all the circumstances it may reasonably be inferred [that the person directing the communication] was doing the thing for the purpose in question”. 

The factual matrix was a private hire car driver offering his services in exchange for sex. The complainer TE was a 21 year old care worker and her friend TM an 18 year old beauty assistant. It was about 3am and the complainers had left a nightclub to return home. The complainers told the driver that they had no money. He asked them what else they could offer, and, when asked what he meant, said “sex?” The street was dark and empty. TE did not feel safe and TM felt frightened.

The sheriff held that this amounted to a communication for the purpose of “obtaining sexual gratification”. The SAC held that it did not.

Giving its decision, the High Court discussed the criminalisation of “certain conduct which interferes with the sexual autonomy of others, notably, but not exclusively, females” (para 20).

At para 24 the court said that the test in terms of s 49 was objective: “The court is not directed towards determining what the accused’s subjective purpose (intention) actually was, since that purpose is proved if an inference of one of the stated purposes is capable of being drawn from the accused’s actings.”

From the conversation with the complainers, it could be inferred that one purpose might have been to obtain sexual gratification. It did not matter “whether the expectation was for immediate, or deferred, gratification”.

A defence of reasonable belief that the complainers consented “might have been open had the communication been made in a social setting and between persons known to each other”. This was far from the position here.

Had the conviction under s 7 failed, the court would have held the respondent liable to be made the subject of the notification requirements of the Sexual Offences Act 2003 because the offence, had it been classified as a breach of the peace, involved “a significant sexual aspect” in terms of sched 3, para 60 to that Act. The respondent had not contested that his conduct amounted to a breach of the peace, but did contest that there was “a significant sexual aspect”.

The court considered that his behaviour in the circumstances, where he was in a position of trust towards vulnerable complainers, indicated predatory conduct.