Lord Advocate, Petitioner
| Jurisdiction | Scotland |
| Judgment Date | 28 April 1998 |
| Docket Number | No 24 |
| Date | 28 April 1998 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Caplan and Lord Johnston
Procedure—Summary procedure—Crime—Exposing person in shameless and indecent manner—Whether offence to which Part I of Sex Offenders Act 1997 applies—Whether indecent exposure—Sex Offenders Act 1997 (cap 51), Part I, secs 1 and 2, Sched 11
Section 1(1) of the Sex Offenders Act 1997 enacts, inter alia,that: “A person becomes subject to the notification requirements of this Part if, after the commencement of this Part—(a) he is convicted of a sexual offence to which the Part applies.” Section 1(9) and Schedule 1 enumerate those offences, Schedule 1, para 2(1) and 2(2) stating that that Part applies to, inter alia“(a) the following offences—…(vii) shameless indecency” where the complainers were under 16 at the time of the offence. Section 5(2) enacts, inter alia, that: “If the court by or before which the person is so convicted or so found (a) states in open court—(1) that on that date he has been convicted …(ii) that the offence in question is a sexual offence to which this Part applies; and (b) certifies those facts …, the certificate shall, for the purposes of this Part, be …, in Scotland, sufficient evidence of those facts.”
A pannel was convicted of publicly exposing his person in a shameless and indecent manner in the presence of three girls under 16 years of age. The sheriff, ex proprio motu, held that the offence constituted the crime of indecent exposure which was not included in Schedule 1. He accordingly refused to grant a certificate in terms of sec 5(2). The Lord Advocate thereafter petitioned the nobile officium of the High Court of Justiciary against the sheriff's decision.
Held (the defence conceding) (1) that there was nothing in Schedule 5 to the Criminal Procedure (Scotland) Act 1995 or its precursor, the Summary Jurisdiction (Scotland) Act 1908, which attached the nomen juris“indecent exposure” to the charge which was competently libelled in the terms set out in the schedule and which was used in the proceedings against the pannel, so that the sheriff's reasoning was insupportable; (2) that as indecent exposure fell within the category of shamelessly indecent conduct, Part I applied to the conviction; and (3) that a certificate under sec 5(2) should be granted; and petition allowed.
The Rt Hon The Lord Hardie, QC, Her Majesty's Advocate, petitioned the nobile officium of the High Court of Justiciary against a decision of the sheriff (A M Bell) in the sheriffdom of Lothian and Borders at Edinburgh refusing to grant a certificate in terms of sec 5(2) of the Sex Offenders Act 1997 after Ernest Harris had been convicted of a charge brought at the instance of Robert Ferguson Lees, procurator fiscal there, the libel of which set forth, inter alia, that: “On 10 September 1997 at 190/4 Peffermill Road, Edinburgh [he] did publicly expose [his] person in a shameless and indecent manner in the presence of the lieges and more particularly of LM, TK and BB, all care of Lothian and Borders Police, Edinburgh.”
Cases referred to:
McKenzie v Whyte (1864) 4 Irv 570
Poli v Thomson (1910) 6 Adam 261
Robertson v Smith 1979 SLT (Notes) 51
Watt v AnnanSC 1978 JC 84
The petition called before the High...
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