KT v Procurator Fiscal, Falkirk

Criminal law – Sexual offences – Voyeurism. Sheriff Appeal Court: In appeals against conviction and sentence by an appellant who took photographs of his former partner when partially naked whilst asleep and was convicted of voyeurism by observing and recording the complainer doing a private act without her consent with the intention of enabling himself or another to look at the image of her, the court held that that it was not appropriate to convict the appellant, who at the relevant time was in a relationship with the complainer, of the 'observing' element of the charge, however, regarding the taking of photographs, if the law provided, as it did by way of s 14(2) of the Sexual Offences (Scotland) Act 2009, that a person was incapable, whilst asleep or unconscious, of consenting to any conduct, there could never be a reasonable belief of consent in such circumstances: as to sentence, it was appropriate to reduce the number of hours of unpaid work to 100 hours.

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