Procurator Fiscal, Dunoon V. Allan Dominick
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Marnoch,Lord Macfadyen,Lady Cosgrove,Lord Sutherland |
| Court | High Court of Justiciary |
| Date | 22 July 2003 |
| Docket Number | XJ147/03 |
| Published date | 22 July 2003 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Marnoch Lord Macfadyen Lady Cosgrove Lord Sutherland
| XJ147/03 OPINION of THE LORD JUSTICE CLERK in REFERENCE UNDER SCHEDULE 6 TO THE SCOTLAND ACT 1998 in the case PROCURATOR FISCAL, DUNOON against ALLAN DOMINICK _______ |
For the accused: Davidson, QC, Shead; Beltrami & Co.
For the Crown: Johnston, AD; Crown Agent
22 July 2003
IIntroduction
[1]The accused has been prosecuted on complaint on four charges involving girls under the age of puberty. Charge 1 is in the following terms:
"on a date between 15 October 2000 and 24 November 2000, the exact date at present to the complainer unknown, at [locus] you Allan Dominick did conduct yourself in a shamelessly indecent manner towards [MM], then aged 10 years and [LM], then aged 9 years, whereby you did discard material showing naked female and male persons in a place and in a manner to which the said children could not help but view same and induce them to view said material;
or alternatively
on date above libelled in [locus] you Allan Dominick did conduct yourself in a disorderly manner and place [MM] and [LM] in a state of fear and alarm, persistently follow them, induce them to view material showing naked female and male persons and commit a breach of the peace."
The three other charges relate to the second and other complainers and are in similar terms, the complainers in each case being girls aged 8 or 9 years. In each of them there is an alternative charge of breach of the peace, again in similar terms.
[2]The appellant has lodged a minute raising a devolution issue. He pleads that the charges of shameless indecency infringe his rights under article 7 of the European Convention on Human Rights (the Convention). If that plea is well founded, the Lord Advocate is barred by section 52(2) of the Scotland Act 1998 from proceeding with those charges. The sheriff has referred the case to this court in terms of paragraph 9 of Schedule 6 to the 1998 Act. She has put to us the following question:
"Is the charge of shameless indecency an all encompassing charge and the law on same unspecific, unclear and not properly defined and therefore too vague to comply with article 7 of the European Convention on Human Rights?"
In the course of a hearing on the reference it became apparent that the questions raised by the minute might require reconsideration of the decision of this court in Watt v Annan (1978 JC 84). The case has therefore been remitted to five judges.
[3]Watt v Annan is a decision on shameless indecency that has stood for 25 years. It has led to a number of controversial decisions. It has been criticised by the writers (eg Gordon's Criminal Law (3rd ed. (2001), by M G A Christie, paras. 36.20-36.22; P W Ferguson, Crimes against the Person, 2nd ed., para. 8.11; G Maher, The Enforcement of Morals Continued, 1978 SLT (News) 281; and Sir Gerald Gordon QC, Shameless Indecency and Obscenity, (1980) 25 JLSS 262 and numerous commentaries in SCCR) and has been discussed without enthusiasm by this court (Paterson v Lees, 1999 SCCR 231). This case has given us the opportunity to re-examine the foundations of the crime, such as they are.
IISubmissions for the parties
(i)For the accused
[4]Since this case comes before the court on a devolution issue, senior counsel for the accused based his submissions on the jurisprudence of the Strasbourg court on article 7. The Crown does not dispute the relevant principles. Senior counsel submitted that the crime of shameless indecency is so uncertain in its scope that it fails to comply with the basic requirement of article 7 that there should be reasonable certainty in the law. In the first edition of Macdonald's Criminal Law (1867) it was recognised that indecent behaviour was an offence against public morals. In the two principal authorities on the subject in modern times the court misunderstood the nature of the crime. In McLaughlan v Boyd (1934 JC 19), the court approved an erroneous statement in Macdonald that "all shamelessly indecent conduct is criminal," and on the basis of that statement extended the crime in Watt v Annan (supra) to conduct committed in private. That decision had extended the crime beyond any logical bounds. The crime should be re-defined more narrowly. The acts libelled in this case could constitute a charge of breach of the peace, but ought not to be classified as shameless indecency. In any event, the complaint was irrelevant for lack of specification.
(ii)For the Crown
[5]The advocate depute did not support the ratio of Watt v Annan (supra) and accepted that the crime should be re-defined. Watt v Annan (supra) went too far in extending the crime to private behaviour on the basis of its liability to deprave or corrupt. The quality of shamelessness consisted in the fact that the conduct offended or annoyed, or was likely to offend or annoy, the public; but it was not necessary for the completion of the crime that any member of the public should witness the conduct. The conduct could be shameless if only the participants were present, provided that it would give offence to members of the public if they were to know of it. Four categories of shameless indecency should remain within any redefinition of the crime; namely, (1) indecent conduct towards children under puberty not involving physical contact and therefore not amounting to lewd, indecent and libidinous practices (eg Paterson v Lees, supra); (2) indecent conduct by a parent towards a child of any age (eg R v HM Adv, 1988 SCCR 254); (3) indecent conduct towards a person with whom the accused has a relationship of trust (eg HM Adv v RK, 1994 SCCR 499; Batty v HM Adv, 1995 SCCR 525); and (4) indecent exposure.
[6]The present complaint was relevant. The conduct was indecent and was directed towards girls under the age of puberty. If the libel lacked specification, that could be cured by amendment. Even if the alternative charges were disregarded, the facts set out in the primary charge could also constitute breach of the peace, as that crime is presently defined.
IIIThe development of the crime of shameless indecency
(i)Origins
[7]There is no trace of the crime of shameless indecency, or of any crime of a similar name, in Mackenzie (Laws and Customs of Scotland in Matters Criminal (1699)), Forbes (Institutes, vol. 2 (1730)), Bayne (Institutions of the Criminal Law of Scotland (1748)) or Maclaurin (Criminal Cases (1774)). The first mention of the expression "shameless" in relation to indecent conduct is to be found in George Smyth (June 20, 1819; Hume, i. 310). Hume notes this case in a section entitled "Corruption of the morals of female pupils." In that case the accused pled guilty to two charges. The first was a charge of indecent assault on three young girls in a common stair "by forcibly thrusting his hands up their petticoats." The second was a charge of indecent exposure by "taking down his breeches and openly exposing his privy parts in a shameless manner in sight of the windows of dwellinghouses, and to the female servants there." Alison refers to this case in passing, but only in relation to the first charge. He does not discuss the crime of indecent exposure (i, 225-226). Bell notes the case of George Thomson or Walker (February 28, 1831; Bell's Notes 86) where the accused pled guilty to certain charges of "assault, especially the assaulting of females, and the using lewd, indecent and libidinous practices and behaviour towards them; as also the feloniously and publicly exposing the private parts of the body in a shameless and indecent manner."
[8]McKenzie v Whyte ((1864) 4 Irv 570) is the first case in which the court considered the definition of the crime of "indecent exposure of the person". Neither counsel discussed this case; but in my opinion it is the key to a proper understanding of this branch of the law. In that case five youths who, it seems, intended to bathe in the South Esk, were convicted on a complaint that alleged that on the bank of the river they "did ... wickedly and feloniously, expose their persons in an indecent and unbecoming manner, and did take off their clothes and expose themselves ... in a state of nudity, to the annoyance of the lieges." The word "shameless" was not used in the complaint. The significance of this case lies in the distinction made by the court between the crime of lewd, indecent and libidinous practices, which the court regarded as a crime against individual victims, and the crime of indecent exposure, which the court regarded as a crime against public morals (Lord Justice Clerk Inglis, at p. 575; Lord Neaves at p. 572-573). The court held that indecent exposure was not a crime per se (Lord Justice Clerk Inglis at p. 576; Lord Neaves at p. 573) and that the libel was irrelevant because it failed to allege that anyone saw the conduct complained of (Lord Justice Clerk Inglis, at p. 577). In dealing with the terms of the libel, the Lord Justice Clerk said
"Now, is that the offence against private persons which we know under the general name of lewd and libidinous practices? It cannot be that. On the other hand, is it that offence against public morals, which consists of a person exposing himself in a state of nudity, or partial nudity, in a public place, or where he can be seen by a multitude of people? There is nothing within the four corners of this complaint to justify us in supposing that the place which these persons selected for undressing themselves was a place where they might naturally expect to be seen by anybody whatever. It is said that they were in the neighbourhood of Brechin Castle; but it is not said that that house was inhabited, or that the place was in itself otherwise a place of public resort, or a place that could be seen from any place of public resort. It is not said that any persons were there and saw the accused; and I think, therefore, it clearly does not amount to that offence against...
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