Webster v Dominick
| Jurisdiction | Scotland |
| Judgment Date | 22 July 2003 |
| Neutral Citation | 2005 SCCR 525 |
| Date | 22 July 2003 |
| Docket Number | No 9 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Justice-Clerk (Gill), Lord Marnoch, Lord Macfadyen, Lady Cosgrove, Lord Sutherland
Justiciary - Procedure - Summary procedure - Devolution - Charge of shameless indecency - Whether the offence of shameless indecency met the Convention standard of clarity and comprehensibility - Human Rights Act 1998 (cap 42), sch 1, Art 7
The Human Rights Act 1998, sch 1, Art 7 provides, inter alia,that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at that time unless it was criminal according to the general principles of law recognised by civilised nations.
The accused Allan Dominick was charged in Dunoon Sheriff Court with conducting himself in a shamelessly indecent manner towards minors or alternatively conducting himself in a disorderly manner towards the minors thereby committing a breach of the peace. The accused plead not guilty and lodged a devolution minute maintaining that the charge of shameless indecency was unspecific, unclear and not properly defined, rendering the proceedings incompatible with Art 7 and the conduct of the prosecution ultra vires under sec 57(2) of the Scotland Act 1998 (cap 46).
Held that the charge of shameless indecency was not a relevant charge in the law of Scotland (Watt v Annanoverruled) (para 46); and case remitted to the sheriff court.
McLaughlan v BoydSC 1934 JC 19 disapproved.
Watt v AnnanSC 1978 JC 84 overruled.
Allan Dominick was charged on a summary complaint in the sheriffdom of North Strathclyde at Dunoon at the instance of David Webster, Procurator fiscal of Dunoon, the libel of which set forth conduct constituting shameless indecency allegedly committed against minors at Dunoon.
Having previously plead not guilty to the charges, the accused tendered a minute raising a devolution issue at the trial diet. Having heard parties, on 17 December 2001, the sheriff (Gimblett) referred the matter to the High Court of Justiciary to determine.
The cause was remitted to a bench of five judges and called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Gill), Lord Marnoch, Lord Macfadyen, Lady Cosgrove and Lord Sutherland for a hearing, on 12 March 2003.
Cases referred to:
Advocate (HM) v MillbankUNK 2002 SLT 1116; 2002 SCCR 771
Advocate (HM) v RKUNK 1994 SCCR 499
Advocate (HM) v RooseUNK 1999 SCCR 259
Advocate (Lord), PetrSCUNK 1998 JC 209; 1999 SLT 405; 1998 SCCR 401
Batty v HM AdvocateSCUNK 1995 JC 160; 1995 SLT 1047; 1995 SCCR 525
Carlin v Malloch (1896) 23 R (J) 43; (1896) 3 SLT 269
Carmichael v Ashrif UNK1985 SCCR 461
Cartwright v HM AdvocateUNK 2001 SLT 1163; 2001 SCCR 695
Cullen v Mecklenberg [1977] WAR 1
Dean v John Menzies (Holdings) LtdSC 1981 JC 23; 1981 SLT 50
Geddes v DicksonSCUNK 2001 JC 69; 2000 SCCR 1007
Harper v Neilson (1898) 1 F (J) 1; (18986) 6 SLT 182
Ingram v MacariSCUNK 1982 JC 1; 1982 SLT 92; 1981 SCCR 184
Knuller (Publishing Printing and Promotions) Ltd v DPPELRWLRUNK[1973] AC 435; [1972] 3 WLR 143; [1972] 2 All ER 898
Lockhart v StephenUNK 1987 SCCR 642
Lockwood v WalkerSC 1910 SC (J) 3; (1909) 6 Adam 124; (1909) 2 SLT 400
McGowan v LangmuirSC 1931 JC 10; 1931 SLT 94
McKenzie v Whyte (1864) 4 Irv 570
McLaughlan v BoydSC 1934 JC 19; 1933 SLT 629
Manderson v R 1909 TS 1140
Paterson v LeesSCUNK 1999 JC 159; 1999 SCCR 231
Phillips v Police (1994) 75 A Crim R 480
R v HM AdvocateUNK 1988 SLT 623; 1988 SCCR 254
R v B 1955 (3) SA 494 (D)
R v B and C 1949 (2) SA 582 (T)
R v Dunn [1973] 2 NZLR 481
R v GibsonELRWLRUNK [1990] 2 QB 619; [1990] 3 WLR 595; [1991] 1 All ER 439
R v Jacob (1996) 142 DLR (4th) 411
R v MaraisENR (1887) 6 SC 367
R v Thallman (1863) 9 Cox CC 388
R v TremblayUNK [1993] 2 SCR 932
Robertson, James Millar (GH Gordon, Criminal Law of Scotland (1st ed, W Green/Scottish Universities Law Institute, 1967), p 852, n 53)
Robertson v SmithSC 1980 JC 1; 1979 SLT (Notes) 51
Robinson, Henry (1843) 1 Broun 643
S v F 1977 (2) SA 1(T)
S v K 1989 (1) SA 65 (C)
Smyth, George 20 June 1819, Hume, i.310
Thomson or Walker, George 28 Feb 1831, Bell's Notes 86
Tudhope v Barlow 1981 SLT (Sh Ct) 94
Usai v RussellSCUNK 2000 JC 144; 2000 SCCR 57
Watt v AnnanSC 1978 JC 84; 1978 SLT 198
Textbooks etc. referred to:
Alison, AJ, Principles and Practice of the Criminal Law of Scotland (1832, Blackwood, Edinburgh), vol 1, pp 225, 226, 562, 563
Anderson, AM, The Criminal Law of Scotland (1892, Bell & Bradfute, Edinburgh)
Bayne, A, Institutions of the Criminal Law of Scotland (1748, T Brown, Edinburgh)
Bell, BR, Notes (1844, Bell & Bradfute, Edinburgh), p 86
Burchell, JM, and Milton, JRL, Principles of Criminal Law (2nd ed, Juta, Lansdowne, South Africa, 1997), p 615
Ferguson, PW, Crimes Against the Person (2nd ed, Butterworths, Edinburgh, 1998), paras 8.11, 8.12
Forbes, W, Institutes of the Law of Scotland (1730, John Mosman, Edinburgh), vol 2
Gane, CHW, Sexual Offences (2nd ed Butterworths, Edinburgh, 2004), pp 137, 138
Gane, CHW, and Stoddart, CN, Casebook on Scottish Criminal Law(3rd ed, W Green, Edinburgh, 2001), paras 9.38, 9.40
Gordon, GH, The Criminal Law of Scotland (1st ed, W Green/Scottish Universities Law Institute, Edinburgh, 1967), pp 31, 32, 850-852; (2nd ed, W Green/Scottish Universities Law Institute, Edinburgh, 1978), paras 1.32, 36.19-36.21; (3rd Christie ed, W Green/Scottish Universities Law Institute, Edinburgh, 2001), vol 2, paras 36.20-36.22
Gordon, GH, "Crimes Without Laws?" 1966 JR 214
Gordon, GH, "Shameless Indecency and Obscenity" (1980) 25 JLSS 262
Hume, Commentaries on the Law of Scotland Respecting Crimes(3rd ed, Bell & Bradfute, Edinburgh, 1829), i.310
Macdonald, JHA, A Practical Treatise on the Criminal Law of Scotland (1st ed, William Paterson, Edinburgh, 1867), pp 228-231; (2nd ed, William Paterson, Edinburgh, 1877); (3rd ed, W Green, Edinburgh, 1894); (4th Macgregor Mitchell ed, W Green, Edinburgh, 1929), p 221; (5th Walker and Stevenson ed, W Green, Edinburgh, 1948), p 149
Mackenzie, G, The Laws and Customs of Scotland in Matters Criminal (2nd ed, T Brown, Edinburgh, 1699)
Maclaurin, J, Arguments and Decisions, in Remarkable Cases, before the High Court of Justiciary, and other Supreme Courts in Scotland(1774, J Bell, Edinburgh)
Maher, G, "The Enforcement of Morals Continued" 1978 SLT (News) 281
Mars, WH, "Crimina Extraordinaria" (1911) 8 SALJ 490
Milton, JRL, South African Criminal Law and Procedure (3rd ed, Juta, Lansdowne, South Africa, 1996), vol 2, pp 271, 272, 276-278
Snyman, CR, Strafreg (4th ed, Butterworths, Durban, South Africa, 2003), pp 365, 366
Voet, J, Commentarius ad Pandectus (1704, A de Hondt, Hagae), 47.11.1 et seq
At advising, on 22 July 2003-
Lord Justice-Clerk (Gill)-
[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:
"[O]n 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 Art 7 of the European Convention on Human Rights and Fundamental Freedoms ("the Convention'). If that plea is well founded, the Lord Advocate is barred by sec 52(2) of the Scotland Act 1998 from proceeding with those charges. The sheriff has referred the case to this court in terms of para 9 of sch 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 inWatt v Annan. The case has therefore been remitted to five judges.
[3] Watt v AnnanENR 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, 3rd ed, paras 36.20-36.22; Ferguson, para 8.11; Maher, "The Enforcement of Morals Continued'; and Gordon, "Shameless Indecency and Obscenity', and numerous commentaries in SCCR) and has been discussed without enthusiasm by this court (Paterson v Lees). This case has given us the opportunity to re-examine the foundations of the crime, such as they are.
[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 Art 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 Art 7 that there should be...
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