Batty v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 19 May 1995 |
| Neutral Citation | 1995 SCCR 525 |
| Docket Number | No 28 |
| Date | 19 May 1995 |
| Court | High Court of Justiciary |
JC
LJ-G Hope, Lords Mayfield, Sutherland
Crime — Lewd, libidinous and indecent practices — Whether such practices could be committed towards girls above age of puberty
Crime — Shameless indecency — Indecent conduct by school houseparent towards girl pupils above age of puberty — Whether such conduct shameless — Whether shameless indecency
Procedure — Solemn procedure — Jury — Verdict — Alternative verdicts — Charge of lewd, libidinous and indecent practices — Whether alternative verdict of shameless indecency available
The pannel was a houseparent at a residential school. He appeared on an indictment alleging that he used lewd, libidinous and indecent practices towards female pupils of the school under the age of 16. All the complainers were over the age of puberty at the time of the offences, the offences being of a gross nature. In his charge to the jury, the sheriff gave directions on the crime of shameless indecency. On being convicted of shameless indecency, the pannel a pealed to the High Court of Justiciary.
Held (1)that the age of the complainer was not of the essence of the crime of lewd, libidinous and indecent practices and behaviour and the introduction of a statutory offence in regard to such practices and behaviour towards girls between the ages of 12 and 16 was not necessarily inconsistent with conduct of that kind being criminal also at common law, although Parliament had not legislated on the assumption that it would not be; (2) that, in practice, a fixed rule about age for this kind of conduct ought not to give rise to difficulty although the age of the complainer would always be relevant but there might be cases, like the instant one, where prosecution for the statutory offence might be thought to be inappropriate because of the limitations placed on the statutory penalties in which instance it would be necessary to proceed under the common law; (3) that, the age of the complainer was not a critical factor for the offence at common law, but the conduct complained of had to fall within the scope of the crime of shameless indecency; and (4) that the relationship between the pannel as houseparent and the complainers as girls in his charge was such that indecent conduct by him towards them could properly be held to be shameless; and appeal refused.
Opinion reserved as to whether the common law crime of lewd practices had to be confined to cases where the complainer was under the age of puberty.
Adrian Batty was charged at the instance of the Rt Hon the Lord Rodger of Earlsferry, QC, Her Majesty's Advocate, on an indictment which set forth that, while a houseparent at a particular residential school, he did repeatedly use lewd, libidinous and indecent practices towards female pupils of the school, the pupils then being aged under 16 years. The conduct in question was of a particularly gross nature.
The pannel pled not guilty. The cause came to trial in Dingwall sheriff court before the sheriff (Crowe) and a jury between 29 August 1994 and 7 September 1994. After the pannel was convicted, the sheriff remitted the case to the High Court of Justiciary for sentence. The pannel was subsequently sentenced to five years imprisonment.
The pannel appealed to the High Court of Justiciary.
Cases referred to:
Lockwood v WalkerSC 1910 SC (J) 3
McLaughlan v BoydSC 1934 JC 19
Watt v AnnanSC 1978 JC 84
Textbooks referred to:
Gordon, Criminal Law (2nd edn), para 36-19
Hume on Crimes (4th edn), i, 309-310
Macdonald, Criminal Law (5th edn), p 150
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Mayfield and Lord Sutherland for a hearing on 28 April 1995. Eo die, their Lordships made avizandum.
At advising, on 19 May 1995, the opinion of the court was delivered by the Lord Justice-General (Hope).
Opinion Of The Court—The appellant went to trial in the sheriff court at Dingwall on an indictment which contained two charges. The first was that, between November 1983 and August 1989, at a school in Fortrose where he was employed as a house parent, he repeatedly used lewd, libidinous and indecent practices towards five female pupils of that school then aged under 16. The second was that in September 1989 he conducted himself in a shamelessly indecent manner towards one of these pupils and had sexual intercourse with her.
An application had been made by fax for a preliminary diet on the ground that the appellant wished to raise a matter relating to the competency or relevancy of the...
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