UNTO THE RIGHT HONOURABLE THE LORD JUSTICE-GENERAL THE RIGHT HONOURABLE THE LORD JUSTICE-CLERK AND THE LORDS COMMISSIONERS OF JUSTICIARY
James Peterkin Scott, Advocate,
The Sheriffdom of Lothian and Borders
Richard Stewart Trotter,
Procurator Fiscal, Edinburgh,
[Under the Criminal Procedure (Scotland) Act 1995]
 After trial on 21st December 2011, I found the appellant guilty of committing a breach of the peace on a crowded commuter train in July 2010 by placing his mobile phone under a table and taking photographs of a young woman who was sleeping in a seat opposite him, ‘all to the alarm and disgust’ of passengers. On 3rd February 2012, having considered the contents of a social enquiry report and having heard the appellant’s agent, I imposed a fine of £750. In addition, having determined in terms of para. 60 of Schedule 3 to the Sexual Offences Act 2003that there was a significant sexual aspect to the appellant’s behaviour in committing the crime, I made a notification requirement of 5 years’ duration.
The Crown case
 On 21st July 2010 the complainer, Fiona Nicholson (28), an actuarial analyst, was seated in a busy commuter train travelling between Inverkeithing and Edinburgh. She was asleep and wearing a short skirt. The appellant was seated opposite her, with a table between them.
 Lynne Martin (39), a marketing executive, saw the appellant leaning under the table at which he was seated, holding a mobile phone in both hands. The phone was pointed towards the complainer’s legs. Lynne Martin alerted her friend, Carolyn Lee (40), a personnel adviser, who was seated next to her. The two women watched the appellant lean forward with his hands under the table on a further three occasions. On each occasion he held his mobile phone in both hands, pointing between the complainer’s legs. On each occasion he leaned closer to her until the phone was one or two inches from her knees. After each occasion he held the mobile phone close to his face and appeared to look at images. Lynne Martin felt sick. “It was awful.” Carolyn Lee was “really shocked.” She felt “really uncomfortable.”
 At Haymarket railway station witnesses reported the incident to PC Lindsay Clarkson and pointed out the appellant. PC Clarkson and a colleague detained the appellant and took possession of his mobile phone. Later, he was cautioned and charged with committing a sexually aggravated breach of the peace. He made no reply. When police officers later informed the complainer of these events, she was upset. She said, “It made me feel violated.”
 The mobile phone was analysed and four video clips were discovered. Each of the clips showed that the mobile phone had been directed between Fiona Nicholson’s legs and towards her crotch. The video clips lasted respectively for 33 seconds, 41 seconds, 1 minute 10 seconds, and 45 seconds. In the third video clip (lasting 1 minute 10 seconds) the camera is either held very close to the complainer’s genital area or the appellant operated the zoom facility on the camera. A dark triangular shape is seen where the complainer’s thighs join her torso.
The defence case
 The appellant (32), a senior radiographer, deponed that on the train he checked his phone for e-mail and text messages. He dropped the phone. He reached under the table to pick the phone up. The camera was on. It wouldn’t turn off. He continued to try to switch the camera off. He could not “get it to the home screen.” He has very poor sight without spectacles and he did not have them with him. He has been registered as visually impaired for a long time [a matter that was agreed in a joint minute]. He has a problem with focusing. He accepted that he did bring the phone close to his person. The reason for moving the phone forward and down was that sometimes he has to hold things farther away in order to focus. He accepted that he took the “photos” but asserted that he did not do so deliberately. It was purely accidental.
 In cross-examination he asserted that he only dropped the phone once. Asked if he needed to hold the camera close to Fiona Nicholson’s knees, he said, “I had it on my lap so I could see.” The suggestion that he pushed the phone forwards towards her legs arose from “misinterpretation” by the witnesses. He had the phone on his knee. “I was holding it on my lap or close to my face to see if the camera had switched off.” On being pressed about pointing the phone between her legs, he said, “I did not do that.” He went on to say, “I didn’t know it was close to her knees; and if it was, it wasn’t intentional.”
 In re-examination he agreed with the suggestion that it was a fairly new phone. He was still getting used to some of the controls. Because of his eyesight he sometimes has to bring objects close to his eyes, and sometimes he has to hold them farther away.
Conclusions on the facts
 I found the Crown witnesses to be honest, reliable and utterly compelling. I had no hesitation in rejecting the appellant’s assertion that the four video clips were taken accidentally while he held the phone on his lap, having dropped it once. His response to the testimony to the effect that he pointed the phone repeatedly between the complainer’s legs was that the witnesses had misinterpreted what they had seen. His account was ridiculous and his demeanour in the witness box was wholly unconvincing. On defence motion, I continued consideration of imposition of notification requirements until the sentencing diet.
 The appellant is a senior radiographer, as is his wife. They have a daughter aged 22 months. His career means a lot to him. He works for a private hospital in Edinburgh. He is extremely anxious in relation to his career being in jeopardy due to this case. His governing body has been notified and awaits the outcome, which could have a detrimental effect on his career. The court is asked to show as much leniency as possible. He has never been in court before. The social enquiry report does mention that there are no specific risk factors, given his relationship, lifestyle, employment and his use of time when he is working. When I indicated that I was not at all sure that I agreed with the author of the report, Mr D’Alvito, solicitor for the appellant, submitted that the appellant had no previous convictions. Deferring sentence for good behaviour would give the appellant an opportunity to show his commitment to “not behaving like this.” I pointed out that the appellant’s position was that he was not guilty of the behaviour of which he was convicted. Thus, the sentencing options were restricted by the fact that he denied any wrongdoing. Mr D’Alvito went on to say that, having a wife and daughter, the appellant did show a level of victim empathy. He invited the court to defer sentence for good behaviour. Alternatively, the court could impose a probation order. An initial supervision plan would help him. His income is £1,800 per month net. His outgoings are about £1,300 per month. Mr D’Alvito’s final position was to invite the court either to defer sentence or to impose a fine. Notwithstanding the fact that Mr D’Alvito had invited the court to defer consideration of imposing notification requirements under the Sexual Offences Act 2003 until the sentencing diet, according to my note he did not address the court on that issue.
 Although I took a serious view of the crime, I concluded that imprisonment was inappropriate. My sentencing aims were to punish the appellant adequately and to provide the public, and young women in particular, with protection from the risk of further offending by the appellant. With all due respect to the author of the social enquiry report I considered that my sentencing aims could not be achieved by deferring sentence for good behaviour. Moreover, given that the appellant steadfastly denied having committed any offence, I considered that probation with a condition of engagement in ‘offence related work’ was also inappropriate and would not achieve my sentencing aims. Accordingly, I punished the appellant by imposing a substantial fine. Having determined that there was a significant sexual aspect to the offender’s behaviour in committing the crime, I imposed notification requirements under the Sexual Offences Act 2003 for a period of 5 years. In this way I sought to achieve my sentencing aim of protection of the public from the perceived danger posed by the appellant.
Comments on the ground of appeal
 The appellant asserts that imposition of notification requirements was inappropriate and disproportionate to the appellant’s behaviour at the time of the crime. In particular, it is said that I erred in finding that there was a significant sexual aspect to the appellant’s behaviour, there being no evidence that such a requirement was necessary to protect the public, as demonstrated by: