Sommerville v Tudhope
| Jurisdiction | Scotland |
| Judgment Date | 19 December 1980 |
| Docket Number | No. 10. |
| Date | 19 December 1980 |
| Court | High Court of Justiciary |
JC
L.J.-G. Emslie, Lords Cameron, Avonside.
Crime—Possession of indecent and obscene material with intent to circulate and distribute it to the retail trade—Material kept in warehouse premises to which the public had no access—Relevancy of libel—Whether mere possession sufficient.
The proprietor of a wholesale business supplying such items as newspapers, magazines and stationery to retail newsagents was charged in the Sheriff Court on a summary complaint which libelled (1) that he had in his possession on his premises indecent and obscene books and magazines for circulation and distribution which were liable to deprave and corrupt the morals of the lieges into whose possession they might fall; and (2) that he circulated and distributed such books and magazines. Pleas were taken to the competency and relevancy of the complaint. The Sheriff found the first charge to be irrelevant and dismissed it. He found the second charge relevant. The proprietor tendered a plea of not guilty to it and was tried and convicted. He appealed. The prosecutor appealed against the Sheriff's finding in relation to the relevancy of the first charge.
Held (1) that the mere possession of obscene or indecent material in premises to which the public did not resort and were not invited to resort did not amount to "trafficking" and was not a crime at common law.
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(2) That the criminal element in charges of exposure for sale of obscene or indecent material lay in the exposure to the public, and there was nothing in the complaint about an intention to expose for sale to the public.
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(3) That, accordingly, the Sheriff was correct in dismissing the first charge as irrelevant, but erred in convicting on the second charge; and convictionquashed.
Galletly v. LairdSC 1953 J.C. 16 considered.
Ian Sommerville was charged on summary complaint at the instance of James Mackenzie Tudhope, Procurator-fiscal, in the Sheriff Court at Hamilton as follows: "you did (1) on 8 January 1979 at the premises occupied by you at “Lea Ridge”, Nemphlar, by Lanark, have in your possession for circulation and distribution all to the retail shop premises specified in the Second Column of the Second Schedule annexed hereto and to various retail shop premises in the Motherwell and Hamilton area and elsewhere the addresses of which are to the Complainer unknown, for subsequent sale to the lieges, 2201 indecent and obscene books and magazines all as libelled in the First Schedule annexed hereto, which books and magazines were liable to deprave and corrupt the morals of the lieges into whose possession they might fall and to create in their minds inordinate and lustful desires; and (2) on the dates specified in the First Column of the Second Schedule annexed hereto at the places specified in the Second Column of the Second Schedule annexed hereto, circulate and distribute and cause to be circulated and distributed the indecent and obscene books and magazines specified in the Third Column of the Second Schedule annexed hereto, with intent that said books and magazines be sold to the lieges, said books and magazines being liable to deprave and corrupt the morals of the lieges into whose possession they might fall and to create in their minds inordinate and lustful desires."
Pleas by the accused to the competency and relevancy of the charges were taken.
The Sheriff (Macpherson) on 26th November 1979 sustained the plea to the relevancy of the first charge and repelled the pleas directed towards the second charge. The Procurator-fiscal asked the Sheriff to state a case for the opinion of the High Court of Justiciary relative to his decision on the first charge ("the first stated case").
The accused pled not guilty to the second charge, and after trial before Sheriff A. M. Bell was convicted of that charge, insofar as it related to the articles specified in a minute of admissions, under deletion of the words "with intent that said books and magazines be sold to the lieges." A fine of £75 was imposed. The accused thereupon asked the Sheriff to state a case for the opinion of the High Court ("the second stated case").
In a note appended to the first stated case, the Sheriff stated: "I was unable to find any authority for the assertion that the narrative of the first charge represents a relevantly averred common law crime. Such authority as I have found points to the requirement of positive action by an accused person in relation to indecent and obscene material for there to be a crime. Here, the averment is that the Respondent did “have in your possession for circulation and distribution.” There is no averment of positive action on the part of the Respondent sufficient to make the first charge relevant. Accordingly I repelled it."
The question of law submitted for the opinion of the High Court in that case was:—"Was I entitled to hold the terms of the first charge to be irrelevant, thus refusing to admit it to probation?"
In the second stated case, the Sheriff found admitted or proved that the appellant was the proprietor of a wholesale business supplying...
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