David Alexander v The Scottish Ministers [2021] SC LOCH 7

Mr Alexander had been convicted on the 11^th of October 2018 of three sexual offences which he committed whilst he was in secondary school against girls of a similar age to him which were in the following terms:

“On various occasions between 1 January 2016 and 31 July 2016, both dates inclusive, at Sgoile Liniclate, Liniclate, Benbecula and at the North Uist Games, Balelone and the Machair near Balelone, North Uist you DAVID ALEXANDER did sexually assault …, c/o the Police Service of Scotland, Stornoway in that you did rub her leg and thigh, place your hand under her clothing and handle her breasts and handle her genitals over her clothing and over her underwear; CONTRARY to section 3 of the Sexual Offences (Scotland) Act 2009.

On two occasions between 1 April 2015 and 30 April 2016, both dates inclusive, at an address unknown to the prosecutor in Balivanich, Benbecula and Screen Machine, Liniclate, Benbecula you DAVID ALEXANDER did sexually assault… c/o the Police Service of Scotland, Stornoway in that you did handle her leg over her clothing and place your hand under her top and handle her breasts over her bra; CONTRARY tosection 3 of the Sexual (Offences) Act 2009.

On various occasions between 1 October 2016 and 26 June 2017, both dates inclusive, at Sgoil Liniclate, Liniclate, Benbecula you DAVID ALEXANDER did sexually assault…, then aged 15 and 16 years of age, c/o the Police Service of Scotland, Benbecula in that you did repeatedly touch and rub her leg and upper thigh and on 26 June 2017 you did persistently handle her genitals over her clothing; CONTRARY to section 3 of the Sexual (Offences) Act 2009.”

The complainers were between the ages of 13-16 and Mr Alexander was between the ages of 14-16 at the time. On the 4^th of December 2018 Mr Alexander had been sentenced to a community payback order with a supervision requirement of two years, a conduct requirement relating to sexual offending and unpaid work of 180 hours. He was subsequently placed on the children’s list in September 2018.

The pursuer has been continually assessed by social work as required and the most recent report dated February 2020 recorded him as being a moderate risk. His risk level had never fallen into the lowest category.

The pursuer maintained his innocence and raised an appeal against his listing because he was concerned that his listing would prevent him from being able to pursue a career in law at the conclusion of his studies at the University of Edinburgh and that he would be labelled a “paedophile”.

The counsel representing the pursuer submitted to the court that the placing of him on the children’s list represented a disproportionate interference in his right to a private life, would stigmatise him and affect his career prospects.

In delivering his judgment, Sheriff Lamont on the question of the pursuer’s career prospects that:

“There was insufficient evidence before the court to allow any appropriate determination that the pursuer’s employment prospects would be adversely impacted by being placed on the children’s list. Little evidence was led regarding whether this would impact either his admission to the legal profession (e.g. no witness from the Law Society) or impact his employment prospects (e.g. no employment expert).”

On the question of the purpose of the listing the Sheriff stated that:

“The legitimate aim of listing the pursuer is one of public safety and prevention of further offending. Accordingly, even if article 8 had been properly engaged, the listing of the pursuer would fall within the exceptions set out in article 8(2) given the evidence before me.”

Further on the question of considering that the pursuer was himself at the time of the offences, the Sheriff stated that the age difference between the pursuer and an older female child is no greater than the two year difference between the pursuer and the first complainer. The Sheriff continued stating that the pursuer failed to demonstrate that he was no longer attracted to females under the age of 18 or posed no risk tho those in that age group.

In conclusion, Sheriff Lamont stated:

“The pursuer lacks a proper understanding of consent, shows little empathy or remorse and lacks insight into his offending behaviour. Section 21(3) requires me to consider the matter afresh on the evidence put before me. Having done so, I am satisfied that the appellant is unsuitable to work with children.”

The appeal was refused.