Judge wrong to accept pub sex assault was a joke - appeal court

Image source, Getty Images

A man who touched a woman's bottom during a Christmas Eve drinking session was wrongfully cleared of sexual assault, an appeal court has ruled.

Steven Harper was convicted of assaulting the woman at an Edinburgh pub in December 2022, but references to "sexual assault" were deleted from the charge.

A judge at Edinburgh Sheriff Court - who has not been named - should not have accepted that he was playing a drunken practical joke, appeal judges said.

The Sheriff Appeal Court in Edinburgh quashed the original judgement and convicted Harper of sexual assault.

Harper's trial heard how the woman had gone to the bar to buy a round and felt someone touch her bottom.

Defence evidence suggested that Harper thought the woman was somebody he knew and wanted to play a practical joke.

The sheriff also accepted that his level of intoxication could be taken into account.

Harper had been charged under the Sexual Offences Scotland Act. He was fined 拢300 but the sheriff deleted references of sexual assault from the final charge.

But appeal sheriffs Nigel Ross, Catherine Dowdalls KC and Gillian Wade KC ruled that Harper鈥檚 intention in playing a practical joke was irrelevant.

They ordered that Harper鈥檚 conviction be recorded as a sexual assault.

In the judgment, Sheriff Principal Wade wrote: 鈥淭he sheriff erred in placing undue weight on the respondent鈥檚 motive, and insufficient weight on sexual autonomy.

鈥淐ommitting a crime for a joke is no defence. The sheriff considered that the excess alcohol led to the mistaken identity, not that it excused the respondent鈥檚 behaviour.

鈥淗owever, he erred in concluding that it could, in the circumstances of this case, negate the sexual act of touching someone on the bottom, in the manner which occurred."

Harper will now be placed on the Sex Offenders Register for five years.