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Indecency no longer “shameless”

1 October 03

Latest criminal cases, including indecency; delay; corroboration

by Andrew Lothian

The wind of change blowing from the continent has brought us a taste of things to come in 2003 GWD 26-735 where an accused at Dingwall Sheriff Court was allowed bail with an additional condition that he lodge with the sheriff clerk a sum expressed in euros. It’s not just the ice cream van outside the Botanic Gardens that is taking them.

Another somewhat unusual matter appears in Stewart v HMA 26-733, an unsuccessful appeal against conviction for murder on the basis of miscarriage of justice due to alleged problems with the amplification system at trial. Various consequences were said to have included the appellant not being able to hear all that was said, and having difficulty giving his evidence clearly. The appeal however failed where it could not be shown that there was anything wrong with the sound system.

Of more substance is Webster v Dominick 26-734 which re-examines the law of shameless indecency. Essentially, the appeal was taken on the ground that the charge infringed the appellant’s rights under art 7 ECHR, that there should be reasonable certainty in the law. However a court of five judges took the opportunity to look at the whole matter from its very basis, holding that the obiter dicta in McLachlan v Boyd 1934 JC 19, on which the decision in the rather more far-reaching case of Watt v Annan 1978 SLT 198 depended, were unsound. Accordingly the famous and unvouched statement in Macdonald’s Criminal Law that all shamelessly indecent conduct is criminal has to be regarded as no longer operative. Instead, the distinction identified in McKenzie v Whyte (1864) 4 Irv 570 was recognised as a valid one. Essentially, lewd, indecent and libidinous conduct is the appropriate charge when the indecent conduct has been directed against an individual victim in a class protected by law, whereas the offence, the essence of which is offending public order should be characterised as public indecency. So it is goodbye to “shameless” as a piece of outmoded rhetoric. Watt and McLachlan are overruled. We may at last have an answer to the question I heard that subtle jurist, the late Lord Walker, pose circa 1965 in the appeal court: “What would happen if an actress came on stage with her breasts bare and everyone wanted to see them?”

In Webster, in which the appellant was allegedly to have directed indecent conduct towards named children, the absence of an allegation that this conduct affronted public decency meant that the crime was in truth one of lewd, indecent and libidinous practices rather than public indecency. In the event the charges also failed from lack of specification.

Delay following admission

Haggart v Spiers 25-709 is another delay case, worth a look perhaps among other reasons in that Lady Paton dissented from the views of the rest of the court, Lord Osborne and Temporary Judge C.G.B. Nicholson QC. This was a successful appeal from a sheriff’s refusal of a plea to the competency of proceedings in respect of embezzlement on the grounds of an alleged breach of the art 6(1) right to trial within a reasonable time. The majority distinguished the leading case of Reilly v HMA 2000 SLT 1330 on the facts, taking the view that the case as explained seemed a fairly simple one to prepare; Lady Paton took the view that it was not. Pausing only to note that the headcount of judges is 2-2, it does seem unfortunate that an offended person should be deprived of seeing someone prosecuted because of some perceived fault on the part of the Crown, particularly when, as here, there seems to have been an admission of guilt. Cases such as this tend to be cited by ill-informed persons to show that courts have become more concerned with the accused’s rights than with victims.

As a matter of personal opinion I think we are right to hang on to the requirement of corroboration. Some further guidance on corroboration is to be provided in the case of Finnan v HMA 26-732, considering proof of intent in an assault case. The case is not easy to summarise and might repay a full reading, as it deals with the circumstances in which a jury may accept or reject parts of witnesses’ evidence, and also the importance of bearing in mind the whole context of what is believed to have happened in considering what inferences may properly be drawn from accepted facts. Corroboration in general is provided an interesting guide to sufficiency of evidence in a perhaps surprising place, Brian Kearney’s celebrated book on Children’s Hearings. We commend it, and concur with Sheriff Kearney’s observation apropos the question “What amounts to corroboration?”, that “this is a big subject”. Usefully too he refers the reader to the fuller discussion at para 24-69 of the 6th edition of Renton and Brown.

We have not seen many important decisions of late. Might one conclude that, but for the recent infusion of ECHR material, we would be approaching certainty? Seems unlikely.