Paterson v Lees
| Jurisdiction | Scotland |
| Judgment Date | 22 January 1999 |
| Docket Number | No 25 |
| Date | 22 January 1999 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Sutherland and Lord Coulsfield
Crime—Shamelessly indecent conduct—Whether permitting children to watch pornographic video constituted shamelessly and indecent conduct—Whether crime Known to the law of Scotland
The appellant was charged with, inter alia, conducting himself in a shamelessly indecent manner towards a girl of 9 and a boy of 11 by showing them an obscene video depicting acts of human sexual intercourse. The evidence had been that the appellant had been watching his neighbour's children in their house. The boy and his younger brother wanted to watch a video and the appellant told them that there were videos in a bag behind the sofa. There was no evidence that the videos belonged to the appellant. The boy selected a video which had an innocuous title. He put it in the VCR in the presence of the appellant and he, the girl and the appellant watched it. In the, circumstances, the Crown were allowed to amend the charge to one of permitting the complainers to see the video. On being convicted the appellant appealed to the High Court of Justiciary.
Held that the crime of shamelessly indecent conduct could not be committed passively, so that once the amendment had been made, there was no relevant charge left; and appeal allowed.
Observed (per the Lord Justice-General (Rodger)) that it was only in limited situations that the common law regarded a failure to act as criminal and, in an age where there were more television channels and widespread access to the internet, for the criminal law to impose on parents and others new duties to prevent children from seeing indecent or obscene material and decree relative punishments for failures to observe those duties, the formulation of the duties and determination of the punishments were for Parliament and not the courts.
Tate Wilson Paterson was charged in the sheriffdom of Lothian and Borders at Edinburgh on a summary complaint at the instance of Robert Ferguson Lees, procurator fiscal there, the libel of which set forth a charge of shameless indecency.
The accused pled not guilty and the cause came to trial before the sheriff.
On being convicted, the accused appealed to the High Court of Justiciary.
Cases referred to:
Advocate (HM) v BattyUNK 1995 SCCR 525
McLaughlan v BoydSC 1934 JC 19
Watt v AnnanSC 1978 JC 84
Textbooks referred to:
Gordon, Criminal Law (2nd edn), para 3–34
Macdonald, Criminal Law (5th edn), p 150
The appeal called in the High Court of Justiciary before the Lord Justice-General (Rodger), Lord Sutherland and Lord Coulsfield for a hearing.
At advising, on 22 January 1999—
LORD JUSTICE-GENERAL (rodger)—The appellant is Tate Wilson Paterson who was convicted at the sheriff court at Edinburgh of two charges, the first being a charge of shameless and indecent conduct and the second being a charge of lewd, indecent and libidinous practices. He appealed against his conviction on both charges, but the Crown conceded that his appeal on the second charge should be allowed. We shall accordingly answer question 2 in the case in the negative and allow his appeal against conviction on the second charge. That leaves the matter of the first charge.
In its original form the first charge was to the effect that the appellant “did conduct [himself] in a shamelessly indecent manner towards [the female complainer aged 9 and the male complainer aged 11] and did show them a film of an obscene and indecent nature which depicted acts of human sexual
intercourse”. At the end of the Crown case, however, in answering a submission of no case to answer, the procurator fiscal depute amended the charge by deleting the word “show” and altering the wording so that the averment was that the appellant “did permit them to see” the film in question. The effect of that amendment was to change the allegation from one of positive conduct on the part of the appellant to one of allowing the children to see the film.
The evidence upon which the Crown relied, both in the court below and in this court, was fairly circumscribed. It showed that the appellant had been left in charge of his neighbour's children, including the two complainers, in their house, while the neighbours went out for a drink. The male complainer and his younger brother wanted to watch a video and the appellant told them that there were videos in a bag behind the sofa. There was nothing in the evidence to suggest that the videos belonged to the appellant. The male complainer selected one and put it into the video recorder. The video in question contained a variety of material, a considerable amount of it obscene, including pictures of human sexual intercourse. The appellant was present when the tape was put into the recorder and while it was playing. The two complainers watched the video, including the scenes of intercourse, in the presence of the appellant. The female complainer did not want to watch the video because it was “dirty”.
The evidence was sufficient to entitle the sheriff to hold that the Crown had proved the averment that the appellant “did permit [the complainers] to see a film of an obscene and indecent nature which depicted acts of human sexual intercourse”. The argument for the appellant, both in this court and in the court below, was, however, that proof of these facts was not relevant to establish guilt of the crime libelled, shameless and indecent conduct.
In rejecting the submission of no case to answer, the sheriff took the view that the Crown amendment made no...
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