George Clark+james Smith+liam Fagan V. Her Majesty's Advocate+procurator Fiscal, Airdrie
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Abernethy,Lord Eassie |
| Neutral Citation | [2008] HCJAC 35 |
| Published date | 25 June 2008 |
| Date | 25 June 2008 |
| Year | 2008 |
| Docket Number | XC79/07, |
| Court | High Court of Justiciary |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Eassie Lord Carloway Lord Abernethy | [2008] HCJAC 35 Appeal No: XC79/07, XC117/07 and XJ1204/07 OPINION OF LORD EASSIE in NOTES OF APPEAL AGAINST SENTENCE by (1) GEORGE CLARK Appellant; against HER MAJESTY'S ADVOCATE Respondent; (2) JAMES SMITH Appellant; against HER MAJESTY'S ADVOCATE Respondent; and; (3) LIAM CHRISTOPHER FAGAN Appellant; against PROCURATOR FISCAL, AIRDRIE Respondent: _______ |
Act: Forbes; Drummond Miller, Edinburgh (Clark), McClure Collins, Edinburgh (Smith)
and Dunipace Brown, Cumbernauld (Fagan)
Alt: Mackay, A.D.; Crown Agent
25 June 2008
Introduction
[1] In each of these three appeals against sentence the appellant pled guilty to a charge, or charges, which opened with the allegation that the appellant in question "did commit an offence of public indecency", the details of that offence being thereafter specified in the charge.
[2] In the cases of George Clark and James Smith the sentencing sheriff imposed an extended sentence in terms of section 210A of the Criminal Procedure (Scotland) Act 1995. In each of those cases the grounds of appeal include a ground relating to the competency of the imposition of an extended sentence. In the case of Liam Fagan the sheriff deferred sentence for a period of one year; but when doing so certified in open court in terms of section 92(2) of the Sexual Offences Act 2003 that the offence to which Mr Fagan had pled guilty was a sexual offence to which Part 2 of that Act applied. The Note of Appeal bears to appeal against "... the sentence of being placed on the Sex Offenders Register under paragraph 42 of the Sexual Offences Act 2003 ...". Although technically there is no such thing as placing someone on the Sex Offenders Register, since a person convicted of a relevant sexual offence is automatically subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, the issue in the appeal is whether an offence of public indecency constitutes a sexual offence for the purposes of that Act. That issue has elements in common with the question whether such an offence is one in respect of which an extended sentence may be imposed. Both issues arise as a sequel to the decision of the court in Webster v Dominick 2005 J.C. 65; 2003 S.L.T. 975; 2003 S.C.C.R. 525. For that reason, all three appeals were heard together.
[3] The terms of the charges to which the appellants respectively pled guilty are as follows:
(a) George Clark:
"(1) on 22 August 2004 at 62B Glentyne Drive, Glasgow, you did commit an offence of public indecency in that you did expose your person in the presence of [SK] ..., then aged 7 years, and [CR], ... then aged 6 years, ... thereby placing them in a state of fear and alarm;
(2) on 1 October 2004 at Gowanbank Primary School, 20 Overton Avenue, Glasgow, you did commit an offence of public indecency in that you did expose your person in the presence of [CR] ..., [MC], then aged 9 years, and [CK] ..., then aged 11 years ... thereby placing them in a state of fear and alarm."
(b) James Smith:
"(001) on 27 September 2006 on a footpath at the rear of St Joseph's Primary School, between Faifley Road and Abbeylands Road, both Faifley, Clydebank you James George Smith did commit an offence of public indecency in that you did expose your naked private member and masturbate in public view, and in particular in view of said St Joseph's Primary School, and [SS] and her 3 year old child, both c/o Strathclyde Police, Clydebank."
(c) Liam Fagan:
"(001) on 06 July 2007 at Main Street, Kilsyth you LIAM CHRISTOPHER FAGAN did commit an offence of public indecency in that you did expose your naked private member, and gesticulate towards a passing vehicle to the fear and alarm of the leiges (sic)."
The Legislation
[4] The provisions relating to extended sentences are contained principally in section 210A of the Criminal Procedure (Scotland) Act 1995, which was inserted in the 1995 Act by the Crime and Disorder Act 1998. Subsection (1) provides:
"(1) Where a person is convicted on indictment of a sexual or violent offence, the court may, if it -
(a) intends, in relation to -
(i) a sexual offence, to pass a determinate sentence of imprisonment; or
(ii) ... ; and
(b) considers that the period (if any) for which the defender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender,
pass an extended sentence on the offender."
The term "sexual offence" is defined by subsection (10) by reference to a list of sexual offences in that subsection. Paragraphs (i) to (viii) on the list are as follows:
"(10) For the purposes of this section - ...
'sexual offence' means -
(i) rape;
(ii) clandestine injury to women;
(iii) abduction of a woman or girl with intent to rape or ravish;
(iv) assault with intent to rape or ravish;
(v) indecent assault;
(vi) lewd, indecent or libidinous behaviour or practices;
(vii) shameless indecency;
(viii) sodomy;"
The remaining paragraphs in the list (entries (ix) to (xxi)) catalogue various statutory offences. The equivalent extended sentence provisions for England and Wales in the 1998 Act define "sexual offence" in terms only of statutory offences.
[5] The provisions respecting the notification requirements imposed on certain sex offenders are now contained in Part 2 of the Sexual Offences Act 2003, read with Schedule 3 to the Act, and replace the provisions introduced by the Sex Offenders Act 1997. Section 80(1) provides:
"(1) A person is subject to the notification requirements of this Part for the period set out in section 82 ('the notification period') if -
(a) he is convicted of an offence listed in Schedule 3;
...".
The entries on the list in Schedule 3 applicable to Scotland are entries 36 to 60 inclusive. Paragraphs 36 to 43 list common law offences and are as follows:
"36 Rape.
37 Clandestine injury to women.
38 Abduction of woman or girl with intent to rape.
39 Assault with intent to rape or ravish.
40 Indecent assault.
41 Lewd, indecent or libidinous behaviour or practices.
42 Shameless indecency, if a person (other than the offender) involved in the offence was under 18.
43 Sodomy, unless every person involved in the offence was 16 or over and was a willing participant."
Items 44 to 59 on the list in Schedule 3 catalogue a number of statutory sexual offences. The final entry, paragraph 60, is in these terms:
"An offence in Scotland other than is mentioned in paragraphs 36 to 59 if the court, in imposing sentence or otherwise disposing of the case, determines for the purposes of this paragraph that there was a significant sexual aspect to the offender's behaviour in committing the offence."
Paragraph 60 thus differs from the preceding paragraphs in that a conviction of that other offence only results in the offender being subject to the notification requirements of the Act if the court makes a determination that the offence involved "a significant sexual aspect to the offender's behaviour". For completeness, as respects paragraph 60 of Schedule 3, mention should be made of paragraph 98 which states:
"A determination under paragraph 60 constitutes part of a person's sentence, within the meaning of the Criminal Procedure (Scotland) Act 1995 (c.46), for the purposes of any appeal or review."
[6] It may therefore be noted that the list of offences constituting a "sexual offence" for the purposes of extended sentences and the notification requirements respectively are not identical. In particular, the former contains no provision equivalent or approximating to paragraph 60 of Schedule 3 to the Sexual Offences Act 2003 and the offence of "shameless indecency" in the former does not have the qualification included in paragraph 42 of Schedule 3 to the Sexual Offences Act 2003.
Submissions
[7] Counsel for the appellants submitted that the broad issue was how the definition of a sexual offence was to be interpreted in so far as the respective statutes listed "shameless indecency", having regard to the decision in Webster v Dominick. The offence of "public indecency" was not listed as a sexual offence. Counsel referred to Nelson v Barbour [2007] HCJAC31; 2007 S.C.C.R. 283 in which the court held that an offence of public indecency came within paragraph 42 of Schedule 3 to the Sexual Offences Act 2003, the reasoning being apparently that "since the decision of Webster v Dominick the word 'shameless' has been declared superfluous by this court in the context of public indecency, which properly recognises the nature of the offence." That approach was not sound. Simply to substitute "public" for "shameless" involved the extension of the provisions of the two sets of legislation to the non-sexual offender. The court should therefore hold that, in the state of the law as now expounded in Webster v Dominick and the current state of the legislation, the imposition of an extended sentence was not competent on a conviction of public indecency; and similarly such a conviction did not entail the notification requirements.
[8] The submission for the Crown, which was presented briefly, may be shortly summarised. It was to the effect that the imposition of the extended sentences was competent; and that the sheriff's identification of the offence committed by Mr Fagan as coming within paragraph 42 of the Sexual Offences Act 2003 was correct. Referring only in part to the history outlined by the Lord Justice Clerk in his opinion in Webster v Dominick, the Advocate depute submitted that originally public indecency had been regarded as one of the two forms of indecency the other of which was lewd, indecent and libidinous conduct. Since, he submitted, public indecency thus came to be encompassed within the wider offence of shameless indecency it could still be regarded as coming within the paragraphs in both sets of legislation which made mention of the offence of...
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