D.f. V. Procurator Fiscal, Dundee
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lady Dorrian,Lord Mackay of Drumadoon |
| Judgment Date | 28 October 2010 |
| Neutral Citation | [2010] HCJAC 108 |
| Court | High Court of Justiciary |
| Docket Number | XJ556/10 |
| Published date | 28 October 2010 |
| Date | 28 October 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Mackay of Drumadoon Lord Bonomy Lady Dorrian | [2010] HCJAC 108 Appeal No: XJ556/10 OPINION OF THE COURT delivered by LORD BONOMY in STATED CASE by D.F. Appellant; against PROCURATOR FISCAL, DUNDEE Respondent: _______ |
Appellant: Keenan, solicitor advocate; Capital Defence Lawyers (for Finlay MacRae, Solicitors, Dundee)
Respondent: Di Emidio AD; Crown Agent
28 October 2010
[1] The issue raised in this appeal is whether the sexual conduct in which the appellant had been involved, namely performing oral sex on her male co-accused, was committed "in public" in the sense required to amount to an offence of public indecency. It was accepted that the conduct in question, whilst lawful in private, was an act of indecency if committed in public. As the discussion during the hearing developed, counsel concentrated their submissions on the mens rea requirement of the offence of public indecency.
[2] The issue arose out of events which took place between around 8.10 and 8.30 pm on 11 July 2009. The appellant was seen by two police officers who were on routine anti-vice patrol in Arbroath Road, Dundee. She was walking near the main entrance to the Eastern Cemetery and Necropolis and talking to drivers of motor vehicles. The officers, who believed the appellant to be a prostitute, spoke to her and invited her to move on, which she seemed willing to do. However, about twenty minutes later she was again observed by the same officers on the opposite side of the road engaging in a brief conversation with a man who had alighted from a bus. Together she and the man crossed the road and entered the cemetery through the open gates.
[3] As the Sheriff tells us in the Stated Case:
"The officers considered that they had reasonable grounds to suspect that an illegal act was in commission and they resolved to act."
They split up and entered the cemetery separately, one of them climbing over the wall. Their aim was to detect the possible crime without alerting the suspects. In the course of what could be described as a pincer movement, each of the officers came independently upon the couple on an area of lawn adjacent to headstones, mature bushes and shrubs. The male was lying on the grass on his back with his knees bent and his trousers open. The appellant was on her hands and knees performing an act of oral sex upon him. Both officers found them after having searched other parts of the graveyard.
[4] The Sheriff made two findings of significance in relation to the nature of the cemetery:
"3...The Eastern Cemetery is a large open space enclosed by a curtain wall with an imposing main gate and other side gates. There is a large main or processional roadway through the graveyard with pathways off. The graveyard is planted out with lawns, well established ornamental trees, rhododendron and other bushes or shrubbery.
...
6. That the Eastern Cemetery Dundee is a place to which the public have generally unrestricted access and that an act of oral sex (fellatio) committed in the open graveyard was one of indecency."
[5] The complaint contained two charges against the appellant, the first of which was also directed against her male companion, in these terms:
"(1) on 11 July 2009 in North Marketgait at Eastern Cemetery, Arbroath Road Dundee, you (DF), (GD) did commit an offence of public indecency in that you, (DF) did perform oral sex on (GD).
(3) on 11 July 2009 at Arbroath Road, Dundee you, (DF), being a prostitute, did loiter in a public place for the purposes of prostitution; Contrary to the Civic Government (Scotland) Act 1982, section 46(1)(a)."
The appellant pled guilty to charge 3 and was found guilty after trial on charge 1. Her co-accused pled guilty to charge 1 and to a separate statutory charge of soliciting. In explaining his decision in the Stated Case the Sheriff concentrated on the actus reus of the offence and said little about the requisite mens rea. There are no findings in relation thereto. Two statements in his reasoning seem to confirm that for him it was sufficient to establish the commission of an offence of public indecency that such an intimate sexual act, which was obviously indecent if committed in public, had been committed in a public place, that is a place to which the public have access, whether seen by any member of the public or not. In paragraphs 6 and 7 of his reasoning he said:
"6... I also considered that to commit a sex act in the open air in a public graveyard is precisely the type of conduct referred to by Lord Sutherland 'as likely to offend against any reasonable standard of public decency or morals' in the case of Paterson v Lees 1999 SCCR at page 235F.
7... I did not accept, as a submission in law, that members of the public (other than the police officers) must actually see the act being committed. In my opinion the open nature of the locus and the lack of absolute concealment were sufficient public elements to constitute the crime. ..."
If that were correct, it would follow that any intimate sexual activity to which the public ought not to be exposed would constitute the offence of public indecency if it took place in the open air in a place to which the public had free access. In other words, no matter how remote the beach or the glen of, say, a national park, such activity there would constitute the offence of public indecency without anyone seeing it and being offended and without regard to the risk of someone seeing it and being offended.
[6] It is plainly unnecessary and indeed undesirable to criminalise conduct as public indecency when, as a matter of fact, the public are neither offended nor at any realistic risk of being offended. Whether or not conduct in public places, or indeed in private places where it is visible to members of the public, falls within the ambit of the crime of public indecency must depend upon the circumstances in which the conduct occurs. The learned Sheriff appears initially to have recognised that....
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