A private hire driver who suggested two women with no money exchange a ride home for sex has had his conviction OVERTURNED after an appeal ruled that it was not a sexual offence.
Sheriff Alasdair MacFadyen ruled that ‘hoping to be offered sexual favours, or the expression of such hope, is different from obtaining sexual gratification’.
Cabbie Faisal Aziz spoke to the women aged 18 and 21 in Edinburgh after hailing down the private hire vehicle (PHV) thinking it was a taxi.
The women asked the driver if he could take them home and told him that they did not have any money.
The PHV driver then said: “What else can you offer?”
He was asked what he meant by that and he replied “sex”.
The younger woman felt ‘unsafe and uncomfortable’, her friend was said to have been ‘frightened’ by the response.
Aziz was later convicted of making a sexual verbal communication and handed a community payback order. The driver was also placed on the Sex Offenders' Register.
That conviction has now been overturned at the Sheriff Appeal Court due to the incident lacking a 'significant sexual aspect'.
In a written judgement, Sheriff Alasdair MacFadyen said: "Importantly, there was no evidence justifying the drawing of a reasonable inference that the appellant obtained sexual gratification from the making of the communication.
"There was no evidence justifying such an inference that he had the purpose of humiliating, distressing or alarming the complainers."
He added: "Hoping to be offered sexual favours, or the expression of such hope, is different from obtaining sexual gratification.
"Obtaining sexual gratification is, in our view, the satisfaction of a sexual urge by the making of the communication and is apt to include satisfaction from observing the reaction of the person to whom the communication was made.
"Accordingly, we were persuaded that the sheriff had erred in finding that all of the necessary components of the offence had been established and erred in finding the appellant guilty of the statutory charge."
Aziz’s name has now been removed from the Sex Offenders Register following the decision by three sheriffs, sparking concern among politicians and campaigners.
Laura Tomson, co-director of Zero Tolerance, said: “The ruling that this incident ‘was not for the purpose of obtaining sexual gratification or distressing or alarming the complainers’ is utterly bizarre.
"Asking women for sex in exchange for a taxi ride is absolutely a form of violence against women and not acceptable.”
Russell Findlay, the Scottish Conservative shadow community safety minister and MSP for West Scotland, said: “Non-lawyers may struggle to understand how a sleazy taxi driver seeking sex from two young women in lieu of a fare does not constitute behaviour of a ‘significant sexual aspect’.
“The unfortunate victims caught up in this technical legal debate can hopefully take some comfort that this trio of sheriffs at least consider the driver’s behaviour to be ‘alarming’.”
In a written judgement, Sheriff Alasdair MacFadyen said in full: "Importantly, there was no evidence justifying the drawing of a reasonable inference that the appellant obtained sexual gratification from the making of the communication.
"There was no evidence justifying such an inference that he had the purpose of humiliating, distressing or alarming the complainers."
He added: "Hoping to be offered sexual favours, or the expression of such hope, is different from obtaining sexual gratification.
"Obtaining sexual gratification is, in our view, the satisfaction of a sexual urge by the making of the communication and is apt to include satisfaction from observing the reaction of the person to whom the communication was made.
"Accordingly, we were persuaded that the sheriff had erred in finding that all of the necessary components of the offence had been established and erred in finding the appellant guilty of the statutory charge."
