Geddes v Dickson
| Jurisdiction | Scotland |
| Judgment Date | 13 October 2000 |
| Neutral Citation | 2000 SCCR 1007 |
| Date | 13 October 2000 |
| Docket Number | No 9 |
| Court | High Court of Justiciary |
JC
Lord Milligan, Lord Johnston and Lord Allanbridge
Justiciary—Crime—Shameless indecency—Nightclub owner encouraged members of audience to expose themselves at a nightclub—Whether actings of nightclub owner constituted shameless indecency
The pannel was charged on a complaint which libelled that he “did conduct yourself in a shamelessly indecent manner and did promote performances incorporating disorderly conduct to take place within [licensed] premises, namely promote male and female persons within to expose their private parts to an audience there in return for which they received free alcoholic liquor for ten minutes”. The pannel was a joint owner of a nightclub. The pannel instructed the disc jockey, as part of the evening's entertainment, to offer ten minutes free drinking to anyone at the disco prepared to come on stage and expose, in the case of females, their breasts, and in the case of males, their penises. One male and two females accepted the invitation. After the Crown evidence, a submission of no case to answer was made on behalf of the appellant and was repelled by the sheriff. The pannel was convicted. The pannel appealed. The pannel argued (1) that the charge did not disclose a crime known to the law of Scotland and did not specify the appellant's intentions as to corruption, or specify whether the potential corruption was supposed to be of the volunteers or of the rest of the audience; (2) that the absence of clarity as to the law of shameless indecency was a reason why the conviction should be quashed under art 7 of the convention on Human Rights; and (3) that, in any event, shameless indecency was not established on the facts proved. The advocate depute argued (1) that the requirement of a person being calculated to be corrupted was not necessary, or was in any event directed at all those in the premises; and (2) that art 7 had o application to the present situation where the law was well established and the crime did not seek development of the law.
Held (1) that the complaint was fatally lacking in specification both (a) as to the nature and extent of the conduct which was alleged to be shameless indecency and (b) as to the effects of that conduct sufficient to satisfy the test for shameless indecency set out in Watt v AnnanSC1978 JC 84 (pp 76I–77A); and (2) that, in the circumstances, there was not sufficient evidence for a conviction for shameless indecency (p 177D); and appeal allowedand conviction quashed.
Charles Geddes was charged in the sheriffdom of Grampian, Highland and Islands at Elgin at the instance of David James Dickson, procurator fiscal there, on a charge of shameless indecency.
The trial diet commenced on 29 October 1999. After conclusion of the Crown evidence, the sheriff (McPartlin) repelled a submission of no case to answer. Evidence was led on behalf of the pannel, and thereafter the sheriff found the pannel guilty and fined him £500 and publicly certified the conviction in terms of sec 5(2) of the Sex Offenders Act 1997.
The pannel thereafter appealed to their Lordships in the High Court of Justiciary.
Cases referred to:
Baxter v HM AdvocateSC 1998 JC 219
Lockhart v StephenUNK 1997 SCCR 642
McLaughlan v BoydSC 1934 JC 19
Paterson v LeesSC 1999 JC 159
SW v United KingdomHRC Series A No 355B (1995) 21 EHRR 363
Tudhope v Barlow 1981 SLT (Sh Ct) 94
Watt v AnnanSC 1978 JC 84
The cause called before the High Court of Justiciary, comprising Lord Milligan, Lord Johnston and Lord Allanbridge for a hearing on 3 October 2000.
At advising, on 13 October 2000, the opinion of the court was delivered by Lord Milligan.
Opinion of the Court—[1] This appeal relates to a conviction for the crime of shameless indecency, a crime in which what can readily be described as indecent conduct is a necessary ingredient, but only one of the ingredients necessary for proof of that crime. The appeal raises the issues (1) whether the sheriff was correct to repel a plea to the relevancy of the charge against the appellant and, in any event, (2) whether he was entitled to find the appellant guilty upon his findings in fact in the case and his reasons for conviction. We are concerned only with these two issues, which are issues of law on the particular wording of the charge against the appellant and the particular findings and reasons of the sheriff contained in the stated case before us. In particular, whether or not the appellant could have been properly convicted on a different charge is not a matter relevant to the issues which we have to decide.
[2] On 29 October 1999, the appellant appeared at his trial diet on a charge amended to read, following the dropping of charges against two other accused, “on 20th February 1999 at the licensed premises at Oppos, St Catherines Road, Forres you CHARLES GEDDES did conduct yourself in a shamelessly indecent manner and did promote performances incorporating disorderly conduct to take place within the premises, namely promote male and female persons within to expose their private parts to an audience there in return for which they received free alcoholic liquor for ten minutes, and in particular did encourage David Alexander Ferrier, Cairnglass, Burdshaugh, Forres to expose his naked private member in return for alcoholic liquor at no charge to him and encourage C, aged 15 years, 38 Wyvis Drive, Nairn and Claire Rebecca Ann Taylor, 42 Conicavel, Forres to expose their breasts in return for which they received free alcoholic liquor for ten minutes including a "Sex on the Beach" cocktail.”
[3] The appellant's solicitor applied for, and was granted, leave to enter a plea to the relevancy of the complaint on the grounds that the charge, as amended, did not amount to a relevant charge of shameless indecency. He submitted that what was libelled in the charge did not amount to shameless indecency. What was absent was the quality of shamelessness. He referred to Tudhope v Barlow, Lockhart v Stephen andPaterson v Lees. There was nothing in the libel to indicate that what took place was pernicious by current standards. Although it was averred that a 15 year old girl was present, there was no averment that the appellant knew her age. There was nothing in the libel to indicate that anyone was at risk of corruption. In reply, the procurator fiscal submitted that the case should go to proof and the sheriff agreed with that submission. He held that the Crown had averred that what took place was shamelessly indecent and described conduct and circumstances which could amount to that. Whether or not they did so in fact could not be determined in advance. Accordingly, he repelled the plea and the trial proceeded.
[4] A joint minute was lodged and evidence led from six witnesses for the Crown. A submission on behalf of the appellant of no case to answer was then made and was repelled. This submission included the contention that the evidence did not fulfil the legal requirements for shameless indecency. In particular there was a lack of any depraving or corrupting result. There had to be more than simply...
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