Ingram v MacAri
| Jurisdiction | Scotland |
| Judgment Date | 06 July 1982 |
| Date | 06 July 1982 |
| Docket Number | No. 1.,No. 1 |
| Court | High Court of Justiciary |
JC
L.J.-G.Emslie, Lord Stott, Dunpark.
Crime—Shamelessly indecent conduct—Selling and exposing for sale indecent and obscene publications—Publications not libelled in complaint as being "liable or likely to deprave and corrupt the morals of the lieges and to create in their minds inordinate and lustful desires"—Relevancy.
A shopkeeper appeared on a summary complaint which narrated that in certain shop premises he had conducted himself in a shamelessly indecent manner by selling one magazine of an indecent and obscene nature and by exposing for sale and having for sale a number of indecent and obscene books and magazines. The complaint did not libel that these publications were liable or likely to deprave and corrupt the morals of the lieges and to create in their minds inordinate and lustful desires. The accused contended that in the absence of such a libel the complaint was irrelevant. This contention was accepted by the Sheriff who dismissed the complaint. The prosecutor appealed against this decision by way of a stated case.
Held that, in a charge at common law of shamelessly indecent conduct consisting of selling or exposing for sale indecent and obscene publications, the words "indecent" and "obscene" imply the liability of the articles concerned to corrupt and deprave and accordingly it is not necessary to the relevancy of the charge that the words "liable or likely to deprave and corrupt the morals of the lieges and to create in their minds inordinate and lustful desires" be libelled.
Galletly v. LairdSC 1953 J.C. 16, Robertson v. Smith 1979 S.L.T. (Notes) 51, referred to.
Elidio Macari was charged at Forfar Sheriff Court on a summary complaint at the instance of Alexander Lindsay Ingram, Procurator-fiscal, Forfar, which was in the following terms:—"that on 23rd December 1980, in the shop premises occupied by you at 90 High Street, Forfar, Tayside Region, you did conduct yourself in a shamelessly indecent manner, and sell one magazine of an indecent and obscene nature, namely “Rustler,” Vol. 5, No. 8, and did further, expose for sale and have for sale 262 indecent and obscene books and magazines all as specified in the Schedule hereto."
When the case called the accused stated a plea to the relevancy of the complaint, arguing, inter alia, that it did not libel a crime at common law in that it did not allege that the publications were "liable or likely to deprave and corrupt the morals of the lieges and to create in their minds inordinate and lustful desires." The learned Sheriff (Kermack) accepted that argument and on 4th May 1981 dismissed the complaint as irrelevant. The Procurator-fiscal asked the Sheriff to state a case for the opinion of the High Court of Justiciary.
The question for the opinion of the Court was:—"Was I entitled to hold that the complaint was irrelevant on the grounds that it was necessary, to make this charge of shameless indecency a relevant charge, to libel an intention or liability or likelihood to deprave and corrupt the morals of the lieges and to create in their minds inordinate and lustful desires?"
The appeal was heard on 23rd September 1981. The arguments are summarised in the opinion of the Court, which was delivered by the Lord Justice-General.
LORD JUSTICE-GENERAL (Emslie).—[His Lordship narrated the terms of the complaint upon which the respondent had appeared, and continued]—After debate, the Sheriff accepted a defence submission that that charge was irrelevant and he dismissed the complaint. The charge was, he held, irrelevant because it did not aver that the indecent and obscene books and magazines were "liable or likely to deprave and corrupt the morals of the lieges and to create in their minds inordinate and lustful desires."
In the Sheriffs view these words are essential to the relevancy of a charge of shameless and indecent conduct at common law consisting of the sale or exposure for sale of indecent and obscene publications. Without these words the libel discloses no crime at common law.
There is no doubt that until recently all charges of shameless and indecent conduct consisting in the sale or exposure for sale of indecent and obscene publications have expressly libelled the liability of these publications to corrupt and deprave. Their omission from this and similar charges in recent complaints is quite deliberate, and stems from...
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