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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> HER MAJESTY'S ADVOCATE v. ANDREW ROY ROOSE [1999] ScotHC 74 (23rd March, 1999) URL: http://www.bailii.org/scot/cases/ScotHC/1999/74.html Cite as: [1999] ScotHC 74

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HER MAJESTY'S ADVOCATE v. ANDREW ROY ROOSE [1999] ScotHC 74 (23rd March, 1999)

In this case Charge 1 on the indictment reads as follows:

Counsel for the accused has challenged the relevancy of that Charge on the ground that the facts set out in the libel cannot constitute the common law crime of "shameless indecency". Although it is accepted that this is a matter which should have been dealt with at a preliminary diet, because of the fundamental nature of the objection I have thought it incumbent on me to entertain the submission this morning in advance of calling on the accused to plead to the indictment.

So far as this matter is concerned, it is accepted by the Crown that nothing more is alleged against the accused than that on various occasions he had intercourse with a girl aged between 13 and 14 years. It is also accepted that, since 1885, such conduct has been rendered criminal by statute but that, for whatever reason, Parliament has required that the statutory offence be prosecuted within one year of the alleged offence taking place. That cannot be done in the present case which is why the Crown seeks to prosecute under the common law.

As to that matter it is, in my opinion, clear that formerly, at least, intercourse with a child over the age of puberty was permitted by the common law of Scotland and it may, indeed, be instructive that until 1929 a child of 12 could actually enter into marriage. As to the state of the common law generally prior to 1885 I refer to HMA v Watson 1885 5 Coup. 696, particularly at p.702. However, the Advocate Depute, in seeking to uphold the libel, submitted, firstly, that, whatever may have been the common law in 1885, the crime of shameless indecency was flexible enough to embrace a change in the public perception of what constituted wholly unacceptable behaviour and, secondly, that the differential in ages between the accused and the complainer (some 20 years) might itself be sufficient to infer a relationship of trust such as had been founded on in Batty v H.M. Advocate 1995 SCCR 525. In support of his first proposition the Advocate Depute referred me to the obiter remarks of Lord Cameron in Watt v Annan 1978 J.C. 84, at pps.88-89, which include Lord Cameron's approval of the statement in McDonald's Criminal Law that "all shamelessly indecent conduct is criminal".

While, however, I see the force of the Advocate Depute's submissions it seems to me a very far reaching proposition that it should, in effect, be left to a jury to declare criminal for the first time conduct formerly regarded as non-criminal. This is particularly so bearing in mind that we are in an area which Parliament has expressly legislated for as recently as 1995 in the Criminal Law Consolidation (Scotland) Act of that year. As for the Advocate Depute's second submission I am simply not satisfied that an age differential per se is a sufficient basis for inferring a relationship of trust such as to bring the case within the ratio of HMA v Batty cit. sup.. While "shameless indecency" can doubtless cover a variety of conduct and will often be dependent on the facts and circumstances of a particular case, it must in the end be a question of law as to what is or is not capable of constituting the crime and the citizen is entitled to clear notice in the indictment of the facts and circumstances which are said to render his particular conduct criminal. If a difference of age per se is said to be material I have great difficulty in seeing where the line is to be drawn.

In the result, I am of opinion that Charge 1 on this indictment is irrelevant. I was, however, informed by the Advocate Depute that in view of the possible importance of the matter the Crown would wish to advocate that decision and, pending such procedure, I was invited to adjourn the trial diet to the sitting of the Court commencing at Edinburgh on 22 February and to extend the twelve month period until 5 March. These motions were not opposed by counsel for the accused and I shall accordingly dispose of the case in the manner thereby proposed.