Carlin v Malloch
| Jurisdiction | Scotland |
| Judgment Date | 07 February 1896 |
| Docket Number | No. 15. |
| Date | 07 February 1896 |
| Court | High Court of Justiciary |
Lord Justice-Clerk, Lord Young, Lord Trayner.
Complaint—Indecent Exposure—Specification—Relevancy.—
Procedure—Verbal Citation—Person with known address—Oppression.—
A person was charged upon a complaint which set forth that ‘he did … on a boat in the River Clyde … wilfully, indecently, and in a shameless manner expose his person’ to a person designed. The accused was convicted of the ‘crime charged.’
In a suspension the Court set aside the conviction on the ground that neither the complaint nor the conviction shewed the facts upon which the charge was rested.
Observed per cur. that when a person charged with a police offence has a known place of residence, it is oppressive to bring him before a magistrate without serving upon him a copy of the complaint (unless he is apprehended in flagrante delicto).
On 10th December 1895 John Carlin, boatman, Govan, was charged in the Police Court, Govan, at the instance of the Burgh Prosecutor, upon a complaint which set forth that he ‘did, on the seventh day of December 1895, on a boat in the River Clyde, between Govan Ferry and Highland Lane Ferry, in the burgh of Govan, wilfully, indecently, and in a shameless manner, expose his person to Mary O'Dwyer, wife of Thomas O'Dwyer, labourer, residing in Albert Street, Govan.’ No statute was referred to.
The accused pleaded not guilty, and after evidence led he was convicted, the conviction bearing,—‘The Magistrate, in respect of evidence adduced, finds the accused guilty of the crime charged.’
Carlin brought a bill of suspension.
The complainer stated that on 7th December he was in his boat 60 feet from the Govan side of the Clyde, when he stood up to pass urine, with his face to the Partick side, 80 yards distant; that hearing a voice from the Govan side he turned round, but could see no one; that on 10th December a policeman visited him at his house and verbally requested him to appear at the Police Court upon the following day. The policeman stated that all he knew was that a woman had some complaint against him. ‘No notice was given to him that he was to be placed at the bar charged with any offence.’
Argued for the complainer;—(1) The complaint was irrelevant. There was no specification of the manner in which the complainer was alleged to have indecently exposed his person,1 or as to what part of his person he had indecently exposed. (2) The conviction was bad. The complainer had a known place of residence, and a warrant for his apprehension should have been issued, or a copy of the complaint should have been served upon him.2
Argued for the respondent;—(1) The complaint was framed in the language used to describe the offence in subsection 1 of section 380 of the Burgh Police (Scotland) Act, 1892 (55 and 56 Vict. cap. 55). It was quite sufficient to specify generally the offence, leaving the actual facts to appear in the evidence adduced at the trial. (2) The answer to the objection to the regularity of the proceedings was that the accused appeared and stated no objection to the mode of citation.
Lord Justice-Clerk.—In...
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