Nelson v Barbour
| Jurisdiction | Scotland |
| Judgment Date | 08 May 2007 |
| Neutral Citation | [2007] HCJAC 31 |
| Date | 08 May 2007 |
| Docket Number | No 27 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Johnston, Temporary Judge CGB Nicholson CBE, QC
Sentencing - Offence of public indecency - Whether order placing offender on Sex Offenders' Register competent - Sexual Offences Act 2003 (cap 42), sch 3, paras 42, 60
Schedule 3 of the Sexual Offences Act 2003 defines sexual offences for the purposes of Pt 2 of the Act. Paragraph 42 defines an offence of shameless indecency as sexual, only if a person (other than the offender) involved in the offence was under 18 years of age. Paragraph 60 defines as a sexual offence, any offence not previously listed where the court determines that there was a significant sexual aspect of the offender's behaviour in committing the offence.
The appellant had tendered a plea of guilty to an offence of public indecency, having removed his clothing, exposed his genitals and gyrated against a handrail. He was fined and placed on the Sex Offenders' Register. He appealed against the order placing him on the Sex Offenders' Register.
The appellant argued that the sheriff had erred in concluding that the circumstances of the offence fell within the meaning of the catch up or residual provision of para 60 of sch 3 to the Sexual Offences Act 2003. This offence came under sch 3, para 42, as an act of shameless indecency. As the offence did not involve another person under the age of 18, there was no sexual connotation to the appellant's behaviour. An order placing him on the Sex Offenders' Register was therefore wrong.
Held that: (1) the word "shameless" had been declared superfluous by the Appeal Court in the context of public indecency (para 4); (2) the sheriff should have applied his mind to para 42 of sch 3 to the Sexual Offences Act 2003 (para 5); (3) there had been no scope for any sexual connotation to this offence of public indecency (para 5); (4) the sheriff should not have considered the issue of the Sex Offenders' Register in the context of the charge that this appellant had faced (para 5) and appeal allowed.
Andrew James Nelson was charged in the sheriffdom of Grampian, Highlands and Islands at Stonehaven at the instance of EK Barbour, procurator fiscal there, on a summary complaint charged with an offence of public indecency.
The appellant pled guilty on 30 August 2006 and was fined £400 and placed on the Sex Offenders' Register for a period of five years.
The appellant thereafter appealed against the order placing him on the Sex...
To continue reading
Request your trial
-
George Clark+james Smith+liam Fagan V. Her Majesty's Advocate+procurator Fiscal, Airdrie
...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 2......
-
Note Of Appeal Against Sentence By Andrew James Nelson
...--> APPEAL COURT, HIGH COURT OF JUSTICIARY Lord Johnston C.G.B.Nicholson, CBEcholson, CBE, QC [2007] HCJAC31 Appeal No: XJ1263/06[MSOffice1] OPINION OF THE COURT delivered by LORD JOHNSTON in NOTE OF APPEAL AGAINST SENTENCE uUnder Section 186(1) of the Criminal Procedure (Scotland) Act 1995......