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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Eassie
Lord Carloway
Lord Abernethy
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[2008] HCJAC 35
Appeal No: XC79/07, XC117/07 and
XJ1204/07
OPINION OF LORD EASSIE
in
NOTES OF APPEAL AGAINST
SENTENCE
by
(1) GEORGE CLARK
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent;
(2) JAMES SMITH
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent;
and;
(3) LIAM CHRISTOPHER FAGAN
Appellant;
against
PROCURATOR FISCAL, AIRDRIE
Respondent:
_______
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Act: Forbes; Drummond Miller, Edinburgh (Clark), McClure Collins, Edinburgh (Smith)
and Dunipace Brown, Cumbernauld (Fagan)
Alt: Mackay, A.D.; Crown Agent
25 June 2008
Introduction
[1] In each of
these three appeals against sentence the appellant pled guilty to a charge, or
charges, which opened with the allegation that the appellant in question "did
commit an offence of public indecency", the details of that offence being
thereafter specified in the charge.
[2] In the cases
of George Clark and James Smith the sentencing sheriff imposed an extended
sentence in terms of section 210A of the Criminal Procedure (Scotland) Act 1995. In each of those cases the grounds of appeal
include a ground relating to the competency of the imposition of an extended
sentence. In the case of Liam Fagan the
sheriff deferred sentence for a period of one year; but when doing so certified in open court in
terms of section 92(2) of the Sexual Offences Act 2003 that the offence to
which Mr Fagan had pled guilty was a sexual offence to which Part 2 of
that Act applied. The Note of Appeal bears
to appeal against "... the sentence of being placed on the Sex Offenders Register
under paragraph 42 of the Sexual Offences Act 2003 ...". Although technically there is no such thing
as placing someone on the Sex Offenders Register, since a person convicted of a
relevant sexual offence is automatically subject to the notification
requirements of Part 2 of the Sexual Offences Act 2003, the issue in the appeal
is whether an offence of public indecency constitutes a sexual offence for the
purposes of that Act. That issue has
elements in common with the question whether such an offence is one in respect
of which an extended sentence may be imposed.
Both issues arise as a sequel to the decision of the court in Webster v Dominick 2005 J.C. 65; 2003 SLT 975; 2003 SCCR 525. For that reason, all three appeals were heard
together.
[3] The terms of
the charges to which the appellants respectively pled guilty are as follows:
(a) George Clark:
"(1) on
22 August 2004 at 62B Glentyne Drive, Glasgow, you did commit an offence
of public indecency in that you did expose your person in the presence of [SK]
..., then aged 7 years, and [CR], ... then aged 6 years, ... thereby placing
them in a state of fear and alarm;
(2) on
1 October 2004 at Gowanbank Primary School, 20 Overton Avenue, Glasgow,
you did commit an offence of public indecency in that you did expose your
person in the presence of [CR] ..., [MC], then aged 9 years, and [CK]
..., then aged 11 years ... thereby placing them in a state of fear and alarm."
(b) James Smith:
"(001) on
27 September 2006 on a footpath at the rear of St Joseph's Primary School,
between Faifley Road and Abbeylands Road, both Faifley, Clydebank you James
George Smith did commit an offence of public indecency in that you did expose
your naked private member and masturbate in public view, and in particular in
view of said St Joseph's Primary School, and [SS] and her 3 year old
child, both c/o Strathclyde Police, Clydebank."
(c) Liam Fagan:
"(001) on
06 July 2007 at Main Street, Kilsyth you LIAM CHRISTOPHER FAGAN did commit
an offence of public indecency in that you did expose your naked private
member, and gesticulate towards a passing vehicle to the fear and alarm of the
leiges (sic)."
The Legislation
[4] The provisions relating to extended
sentences are contained principally in section 210A of the Criminal
Procedure (Scotland) Act 1995, which was inserted in the 1995 Act by the Crime
and Disorder Act 1998.
Subsection (1) provides:
"(1) Where
a person is convicted on indictment of a sexual or violent offence, the court
may, if it -
(a) intends,
in relation to -
(i) a sexual offence, to pass a determinate
sentence of imprisonment; or
(ii) ... ;
and
(b) considers that the period (if any) for
which the defender would, apart from this section, be subject to a licence
would not be adequate for the purpose of protecting the public from serious
harm from the offender,
pass an extended sentence on the
offender."
The term "sexual offence" is defined by subsection (10)
by reference to a list of sexual offences in that subsection. Paragraphs (i) to (viii) on the list are
as follows:
"(10) For
the purposes of this section - ...
'sexual offence' means -
(i) rape;
(ii) clandestine injury to women;
(iii) abduction of a woman or girl with intent
to rape or ravish;
(iv) assault with intent to rape or
ravish;
(v) indecent assault;
(vi) lewd, indecent or libidinous behaviour or
practices;
(vii) shameless indecency;
(viii) sodomy;"
The remaining paragraphs in the list (entries (ix) to (xxi))
catalogue various statutory offences. The
equivalent extended sentence provisions for England and Wales in the 1998 Act define
"sexual offence" in terms only of statutory offences.
[5] The
provisions respecting the notification requirements imposed on certain sex
offenders are now contained in Part 2 of the Sexual Offences Act 2003, read
with Schedule 3 to the Act, and replace the provisions introduced by the
Sex Offenders Act 1997. Section 80(1)
provides:
"(1) A
person is subject to the notification requirements of this Part for the period
set out in section 82 ('the notification period') if -
(a) he is convicted of an offence listed in
Schedule 3;
...".
The entries on the list in Schedule 3 applicable to Scotland are entries 36 to 60 inclusive. Paragraphs 36 to 43 list common law
offences and are as follows:
"36 Rape.
37 Clandestine injury to women.
38 Abduction of woman or girl with intent
to rape.
39 Assault with intent to rape or ravish.
40 Indecent assault.
41 Lewd, indecent or libidinous behaviour
or practices.
42 Shameless indecency, if a person
(other than the offender) involved in the offence was under 18.
43 Sodomy, unless every person involved
in the offence was 16 or over and was a willing participant."
Items 44 to 59 on the list in Schedule 3 catalogue
a number of statutory sexual offences.
The final entry, paragraph 60, is in these terms:
"An offence in Scotland other than is
mentioned in paragraphs 36 to 59 if the court, in imposing sentence or
otherwise disposing of the case, determines for the purposes of this paragraph
that there was a significant sexual aspect to the offender's behaviour in
committing the offence."
Paragraph 60 thus differs from the preceding paragraphs
in that a conviction of that other offence only results in the offender being
subject to the notification requirements of the Act if the court makes a
determination that the offence involved "a significant sexual aspect to the
offender's behaviour". For completeness,
as respects paragraph 60 of Schedule 3, mention should be made of
paragraph 98 which states:
"A determination under
paragraph 60 constitutes part of a person's sentence, within the meaning
of the Criminal Procedure (Scotland) Act 1995 (c.46), for the purposes
of any appeal or review."
[6] It may
therefore be noted that the list of offences constituting a "sexual offence"
for the purposes of extended sentences and the notification requirements
respectively are not identical. In
particular, the former contains no provision equivalent or approximating to
paragraph 60 of Schedule 3 to the Sexual Offences Act 2003 and the offence
of "shameless indecency" in the former does not have the qualification included
in paragraph 42 of Schedule 3 to the Sexual Offences Act 2003.
Submissions
[7] Counsel for the appellants submitted
that the broad issue was how the definition of a sexual offence was to be
interpreted in so far as the respective statutes listed "shameless indecency",
having regard to the decision in Webster v
Dominick. The offence of "public indecency" was not
listed as a sexual offence. Counsel
referred to Nelson v Barbour [2007] HCJAC31; 2007 SCCR 283 in which the court held
that an offence of public indecency came within paragraph 42 of
Schedule 3 to the Sexual Offences Act 2003, the reasoning being apparently
that "since the decision of Webster v
Dominick the word 'shameless' has
been declared superfluous by this court in the context of public indecency,
which properly recognises the nature of the offence." That approach was not sound. Simply to substitute "public" for "shameless"
involved the extension of the provisions of the two sets of legislation to the
non-sexual offender. The court should
therefore hold that, in the state of the law as now expounded in Webster v Dominick and the current state of the legislation, the imposition
of an extended sentence was not competent on a conviction of public
indecency; and similarly such a
conviction did not entail the notification requirements.
[8] The
submission for the Crown, which was presented briefly, may be shortly
summarised. It was to the effect that
the imposition of the extended sentences was competent; and that the sheriff's identification of the
offence committed by Mr Fagan as coming within paragraph 42 of the
Sexual Offences Act 2003 was correct.
Referring only in part to the history outlined by the Lord Justice Clerk
in his opinion in Webster v Dominick, the Advocate depute submitted that originally public indecency had
been regarded as one of the two forms of indecency the other of which was lewd,
indecent and libidinous conduct. Since,
he submitted, public indecency thus came to be encompassed within the wider
offence of shameless indecency it could still be regarded as coming within the
paragraphs in both sets of legislation which made mention of the offence of
"shameless indecency". Public indecency
was, he said, simply a sub-species of shameless indecency and since Webster v Dominick had declared that the word shameless was superfluous the
paragraph should simply be read as meaning "public indecency". The Advocate depute also pointed out that in
the case of Mr Clark, the sheriff had proceeded upon the basis that the
offence could properly be classified as one of lewd, libidinous and indecent
conduct and had proceeded upon that basis.
The sheriff was entitled to do so.
Reference was made to Grainger v
Her Majesty's Advocate 2005 SCCR 175.
Discussion
[9] In making provision for extended
sentences in sexual offences it is in my view clear that the legislature chose
not to define a "sexual offence" in general terms. Instead, a "sexual offence" was defined by a
catalogue of certain statutory offences and certain common law offences listed
by their respective nomina juris. Subject to the exception in paragraph 60
of Schedule 3 to the Sexual Offences Act 2003, the same applies to the
legislative approach adopted in relation to the notification requirements
automatically imposed on certain sexual offenders. So, in listing "shameless indecency" in that
catalogue, the legislature evidently proceeded upon the basis that there was a recognised
common law offence of "shameless indecency", sufficiently specific, in the same
way as "rape" or "sodomy" are specific common law offences, that a person
convicted of it would know that he was automatically subject to the
notification requirements. Prior to the
decision of the court in Webster v Dominick, that was no doubt a proper
basis upon which the legislature could proceed.
[10] I would add in
passing that although the Sexual Offences Act 2003 received the Royal Assent a
few months after the decision in Webster v
Dominick, it is I think evident that
the giving of that decision either came too late for it to receive the attention
of Parliamentary counsel or the legislature, or simply that it went unnoticed
in the run up to the Royal Assent. In
any event, the Sexual Offences Act 2003 effectively replaced the provisions of
the 1997 Act, which similarly catalogued "shameless indecency" as one of the
relevant sexual offences.
[11] The emergence
of a crime by the specific name of shameless indecency in Scots criminal law is
described and analysed by the Lord Justice Clerk in his opinion in Webster v Dominick (with which all of the other four members of the Bench
agreed). The fons et origo is effectively identified by him in the obiter dictum of the Lord Justice
General (Clyde) in McLaughlan v Boyd 1934 JC 19; 1933 SLT 629 - see paragraphs 15-18
of the opinion of the Lord Justice Clerk in Webster
v Dominick, in which the invocation
by the Lord Justice General of the statement by Macdonald that "all shamelessly
indecent conduct is criminal" is described as having been "wrested ... from its
context as a basis for a general proposition that was unsupportable". The dictum
was obiter in the respect that the
accused in McLaughlan v Boyd did not face any charge of
shameless indecency. He faced instead
charges of lewd, libidinous and indecent conduct and indecent assault. As the Lord Justice Clerk points out, it is
not until Watt v Annan 1978 J.C. 84; 1978
S.L.T. 198 that one finds the first reported instance of an express charge of
"shamelessly indecent conduct".
[12] As the Lord
Justice Clerk further points out in his discussion of Watt v Annan, the focus
in that case was on the concept of "shamelessness". Thus at paragraph [25] he records the
Crown submission in Watt v Annan:
"[25] The
Advocate depute submitted that the necessary qualification of shamelessness
implied that the conduct was directed intentionally towards another or others,
and in the context that the conduct itself should tend or be liable or
calculated to deprave or corrupt the morals of the person or persons towards
whom it was directed (p.86). This
submission was unvouched."
This submission was taken up and approved by Lord Cameron in
his opinion (in which the other judges concurred) in this important passage
from Lord Cameron's opinion:
"It is clear however, as the Crown
maintained, it is not the indecency of the conduct itself which makes it
criminal but it is the quality of 'shamelessness', and the question is what is
the content of this qualification? It
was accepted, and rightly so, in the submission for the Crown that the conduct
to be criminal, in such circumstances as the facts of this case disclose, must
be directed towards some person or persons with an intention or knowledge that
it should corrupt or be calculated or liable to corrupt or deprave those
towards whom the indecent or obscene conduct was directed ...".
The above forms only a part of a larger quotation by the Lord
Justice Clerk from the opinion which Lord Cameron gave in Watt v Annan but I think
it unnecessary to rehearse the remainder of that quotation, the nature of the
crime having been identified by Lord Cameron in "shamelessness", not
"indecency". The Lord Justice Clerk then
goes on to say, in paragraph [27]:
"[27] In
my opinion, this reasoning is unsatisfactory.
It takes for granted an irrelevant submission for the Crown about
corruption and depravity for which there was no foundation in authority. It proceeds, in my view, on a
misunderstanding of the 'public' element in the crime of indecency identified
in McKenzie v Whyte, and of the treatment of 'indecent practices' in the first
three editions of Macdonald."
The Lord Justice Clerk then went on to quote further from the
opinion of Lord Cameron in Watt v Annan in which Lord Cameron made even
more plain that the issue was not one of affront to public decency or morals
but whether the conduct in question was conduct liable to deprave or corrupt
persons to whom it was directed.
[13] In my view,
what is next said by the Lord Justice Clerk is important. In paragraphs [28] and [29] he says:
"[28] The
decision in Watt v Annan was a direct consequence of McLaughlan v Boyd. The excessive
statement of Lord Justice General Clyde in McLaughlan
v Boyd set no limit to the ambit
of shameless indecency. The effect of
that statement was to enable the court, by characterising any form of conduct
as shamelessly indecent, to exercise the declaratory power. That, in my opinion, is what happened in Watt v Annan. The result was the creation of a crime that had no basis
in principle and was unconstrained by any clear or logical boundaries. [emphasis added]
[29] As
a result of Watt v Annan the ingenuity of the Crown
extended the crime in three directions."
[14] In my view it
is evident that the analysis carried out by the Lord Justice Clerk identified Watt v Annan as creating a new crime, which, in the event, had no proper
basis and which, on that unsound basis, had led to the extension of this newly
created crime in three particular domaines.
These domaines were (a) obscenity cases;
(b) sexual relationship cases;
and (c) lewd conduct cases. The
development of the crime of shameless indecency in those three domaines is then
described further by the Lord Justice Clerk in paragraphs [30] to [40] of
his opinion. I do not think it necessary
to rehearse those details. But I would
observe, first, that the basis for much, if not all, of the expansion was the
identification in Watt v Annan of "shamelessness", interpreted as
conduct with the tendency to deprave and corrupt the person or persons to whom
it was directed, as the central ingredient in the crime of shameless indecency; and secondly, that the extension under (b)
involved the criminalising of a number of consensual sexual relationships, or
consensual sexual activity, not previously criminal. I would add, as respects the first of those
observations, that in Geddes v Dickson 2001 J.C. 69 the absence of the
ingredient of a tendency to deprave and corrupt was considered to render
unsound a conviction for shameless indecency of a nightclub proprietor alleged
to have procured his disc jockey to have invited "clubbers" to "flash" by
showing respectively naked breasts or male genitalia, in exchange for which
they would received a limited period of entitlement to free drinks.
[15] Accordingly,
prior to the decision in Webster v Dominick, and at the time when the
legislation with which we are concerned was promulgated, the crime of shameless
indecency, created in Watt v Annan, embraced actual sexual
relationships and other sexual activity conducted in private and an essential
element was that the conduct have a tendency to deprave and corrupt. The inclusion of shameless indecency as a
sexual offence for the purposes of the legislation was therefore readily
understandable. Geddes v Dickson
underscores the centrality of conduct intended to deprave and corrupt as key to
the essential of "shamelessness".
[16] One should
next consider what was said by the Lord Justice Clerk in Webster v Dominick respecting
the continuance of the crime of shameless indecency created by the court in its
decision in Watt v Annan.
At paragraph [46] the Lord Justice Clerk said:
"[46] In
my opinion, the obiter dicta in McLaughlin v Boyd, on which the court relied in Watt v Annan, were
unsound for the reasons that I have given, and should be disapproved. Watt v
Annan was wrongly decided and should
be over-ruled, together with those cases in which the ratio of it has been
followed."
Counsel for the appellant and the Advocate depute in Webster v Dominick suggested redefinition of the crime, while yet retaining
the nomen juris. But in the opening sentence of
paragraph [48] of his opinion the Lord Justice Clerk declines that
invitation. He says "redefinition is not
the answer to the problems highlighted in this case." He then refers to and develops the
distinction between indecency constituted by lewd, libidinous and indecent
practices against an individual on the one hand and public indecency being acts
which cause public affront on the other hand, the distinction being that
expounded in McKenzie v Whyte.
But the development of this distinction follows after his over-ruling of
Watt v Annan, which created the crime of "shameless indecency" and all
that followed thereon.
[17] Pausing at
this point, I have to say that I have difficulty in reading the opinion of the
Lord Justice Clerk in Webster v Dominick as being to any different
effect than that the particular common law crime of shameless indecency created
by the decision in Watt v Annan, and so understood when the
legislation was promulgated, should no longer exist and, indeed, should never
have existed. If that reading be correct,
and as a result of the court's decision respecting the wrongful creation of the
common law crime of shameless indecency it no longer exists, then it appears to
me that the consequence must be that the crime of shameless indecency is
effectively expunged from the lists in the statutes with which these cases are
concerned. Although not an exact
analogy, were one of the listed statutory sexual offences to be repealed, I do
not think one would ever say that a conviction under another, non-listed,
statutory offence for criminal conduct which might have fallen within the ambit
of the repealed offence would yet provide a competent basis for an extended
sentence, or (absent a paragraph 60 determination) subject the offender to
the notification requirements. (One
might of course expect the legislature to review the list and amend
appropriately). But, as already
indicated, on my understanding of the creation of the crime of shameless
indecency and the decision of the court in Webster
v Dominick the court, recognising
the error of its predecessor, effectively repealed that crime. With all respect to the bench in Nelson v Barbour I do not consider that the decision in Webster v Dominick was
simply that the use of the adjective "shameless" was superfluous and that
accordingly any offence of "indecency" came within the ambit of
paragraph 42 of Schedule 3 of the Sexual Offences Act 2003. I note of course what was said by the Lord
Justice Clerk at paragraph [57] in Webster
v Dominick respecting the terms in
which an offence of public indecency might be libelled and that the view was
there expressed that "shamelessness" was not a definitional element on the
crime and that its use was superfluous in the modern style of the charge. However, what the Lord Justice Clerk is there
discussing, on my reading of his opinion, is simply the manner in which the (different)
offence of public indecency might be libelled.
[18] Moreover, in
my opinion, it is not to be assumed that in the light of Webster v Dominick the
legislature would necessarily have included, without at least some
qualification, the offence of "public indecency" in the respective lists of
sexual offences. (I note in passing that
the lists include private indecency, namely lewd, libidinous and indecent
practices as a separate item from shameless indecency but do not include public
indecency, albeit that on the argument advanced by the Crown both would be
sub-branches of shameless indecency). In
Webster v Dominick the Lord Justice Clerk essayed a description of the ambit
of the crime of public indecency in the following paragraphs of his opinion:
[19] Two particular
points strike me from this. The first is
that the Lord Justice Clerk in paragraph [54] does not exclude the offence
of public indecency extending to conduct of a non-sexual nature, as it apparently
does in South Africa and in England.
The second is that he states that the sexual gratification of the
offender is irrelevant to liability. In
my view that is readily understandable.
It is not, in my opinion, difficult to postulate instances of public
indecency committed without any sexual motive, or perhaps more importantly, any
sexual disorder or deviance on the part of the offender. The young man who, perhaps under the
influence of alcohol and incited by his companions for a bet, "streaks" naked
across the pitch at a football or rugby match may well affront public
decency; but one would hardly regard him
as a sexual offender. Political
protesters might decide to re-inforce their protest by "mooning" (i.e. less
colloquially, displaying the naked buttocks); or, reverting approximately to the
circumstances of McKenzie v Whyte, a person or persons may choose,
in a variety of circumstances, to swim naked in a pool or river or on a beach
in which it was, in the event, inappropriate having regard to the public nature
of the locus; or a dramatist may seek to
use nudity in order to shock or confront what he considers to be prudery in
society.
[20] For all of
these reasons I have come to the conclusion that the provisions of
paragraph (vii) of section 210A(10) of the Criminal Procedure
(Scotland) Act 1995 and of paragraph 42 of Schedule 3 to the Sexual
Offences Act 2003 should be construed as having the ambit of the crime of
"shameless indecency" as created by Watt v
Annan and subsequently developed on
the basis of the central ingredient of conduct intended to deprave or corrupt
and, in that particular sense, thus "shameless". I do not consider, following Webster v Dominick, with its over-ruling of the creation of "shameless
indecency", that it is legitimate for the court now simply to treat those provisions
of the statute as having been re-written with the substitution of "public" for
"shameless" - or indeed, as Nelson v Barbour might indicate, the omission of
any adjective at all. Further, in my
view it is apparent that the scheme or structure involves the cataloguing or
listing of a single particular offence in each of the paragraphs or entries in
the lists. (As respects England and
Wales all the offences to which the provisions of the 1998 Act were applied are
statutory offences: similarly as respects
the 2003 Act). Given this scheme of the
legislation, I consider that the entry in paragraph 10(vi) of
section 210A of the 1995 Act, and in paragraph 41 of Schedule 3
to the 2003 Act of "lewd, indecent or libidinous behaviour or practices" should
be construed by reference to the recognised common law crime of such practices
or behaviour used against a child under the age of puberty, irrespective
whether the nomen is phrased using
"and" as opposed to "or".
[21] I would also
add that the equivalent English provisions in Schedule 3 to the Sexual
Offences Act 2003 contain no such wide-ranging provision for "indecency" or
even "public indecency". The nearest
equivalent to the facts of the present cases is the offence of "exposure" under
section 66 of the Sexual Offences Act 2003. That offence is strictly defined and is
clearly much less extensive than the Scottish common law crime of public
indecency as expounded in Webster v Dominick. But its inclusion in paragraph 33 of
Schedule 3 to the Act is subject to yet further restrictive conditions.
[22] There is no
doubt that the present state of affairs, in which the judicially created common
law crime of shameless indecency has been removed from the canon of common law
crimes but no legislative adjustment has taken place as respects the terms of
the legislation with which we are concerned, is unsatisfactory. There are of course public indecency offences
- particularly many cases of indecent exposure of the genitalia - which may be committed
for sexual gratification and which may demonstrate a sexual disorder or
deviance in which the public protection elements of the legislation under
consideration in these appeals may be highly relevant. But in my view the court should not re-write
the statute book. In my opinion, the
extent to which those committing an offence of public indecency - with its
broad ambit including those who may not be sexual offenders in any real sense -
should be liable to an extended sentence, or be subject to the notification
requirements, is properly one for the legislature to define (within which I
would include a definition leaving an element of discretion to the court).
[23] I have
accordingly come to the conclusion that a conviction for public indecency does
not come within the list of sexual offences in section 210A(10) of
the 1995 Act. Similarly, it is not within
paragraphs 36 to 59 of Schedule 3 to the Sexual Offences Act 2003. However, if it is not within those paragraphs
of Schedule 3, as I would hold, it follows that the possibility of the
court's determining, under paragraph 60 of Schedule 3, then opens
up. Clearly, this process of reasoning
entails that Nelson v Barbour was not correctly decided.
[24] Having thus
dealt with the general issues of principle arising as sequelae to the decision in Webster
v Dominick as presented to us, I
turn now to the three cases individually, since the merits of the sentence
decisions in Clark and Smith were actively argued.
The cases individually
[25] The appellant George Clark pled guilty on 13 September
2005 to the
two charges set out above. On 15 November
2005 he
agreed to undertake a three year probation order and was sentenced
accordingly. He later breached that
probation order when, on 14 January 2006, he was found masturbating in Rouken
Glen Park, Glasgow and pled guilty thereafter at first appearance to an offence
of public indecency. He was sentenced on
3 April 2006 to two months' imprisonment on that charge and
thereafter appeared, in respect of a breach of probation report, for sentence
on the original offences. The sheriff
was given this agreed narrative of the original offences:
"... the appellant on 22 August
2004 in Glentyne Drive, Glasgow was in his car. The two children in charge 1 were
playing in the street. They noticed a
dark coloured car driving up and down the street a couple of times. The car drew up alongside the children who
were on the pavement. The appellant did
not know any of the children involved.
He stopped his car. Both front
windows were down. The appellant asked
the children where Anderston Drive was.
The children pointed in the correct direction. Both children, aged 6 and 7 years, could see
inside the car. The appellant had his
jogging bottoms down to his knees. He
had no underwear on. His penis was
exposed in the presence of the children.
The appellant drove off. The
children told [CR's] grandfather who lived nearby. The police were alerted. The children gave detailed descriptions of
the appellant.
Approximately five weeks later on 1 October
2004 at Gowanbank Primary School, Overton Avenue, Glasgow, the appellant was seen [to] park
his car near the school. He walked into
the school playground. [CR] is a pupil
at the school. The appellant had his zip
or fly undone. His penis was
exposed. [CR] recognised him. He approached the three children, aged 6, 9
and 11 years respectively and who are named in the charge and asked 'Do
you know where Annabel lives?' He then
said, 'I really need the toilet; I don't
want anyone to see me'. He asked the
children if it was alright to do the toilet there. He turned around and did the toilet in the
playground. He pulled his jeans down to
around his thighs. He had no pants
on. The children were alarmed. They were screaming and ran away. [CR's] grandfather saw the appellant's
car. He took note of the registration
number and a description of the car. He
called the police. The police made
enquiries and the car was traced to the appellant. When interviewed in relation to charge 1 the
appellant said, 'It wasn't me'. In
relation to charge 2, 'I didn't expose my penis. I was urinating'."
On 2 October 2006 sheriff imposed an extended sentence
of five years, of which the custodial part was fixed at a total of twenty
months (after discounting for the appellant's guilty plea) with effect from 11 July
2006.
[26] By the time at
which the appeal came before us, the appellant, Mr Clark, had in fact
served all of the custodial part of the extended sentence having been released
from prison on 11 May 2007.
We were told that he had been regularly seeing his supervising officers
and had committed no other offences. He
had gained employment and had passed a test of competency as a crane
driver. We were therefore invited to
quash the original extended sentence and substitute a non-extended sentence for
the period which had been served.
[27] In imposing
the extended sentence the sheriff, faced with the difficulties of the decision
in Webster v Dominick and the absence of legislative action in the light of that
decision, did not proceed upon the basis that paragraph (vii) of
section 210A(10) of the 1995 Act could simply be read with the deletion of
"shameless". For the reasons already
given in the general discussion in this Opinion I think he was right not so to
proceed. Rather, he took the view that
the offences in question could, and should, have been libelled as lewd,
libidinous and indecent practices towards the particular children in
question. The Crown declined his
invitation to amend the charge accordingly - for the wholly proper reason that
since the plea had been tendered and accepted and the motion for sentence had
been made on 13 September 2005 the Crown was then functus.
However, the sheriff then proceeded, having given consideration to the
statutory provisions and the terms of Webster
v Dominick, to decide that the case before him was in substance one of lewd,
indecent and libidinous practices towards children. The extended sentence was imposed upon that
basis.
[28] While I agree
that the acts with which the appellant, Mr Clark, was charged could
properly have been libelled as lewd, libidinous and indecent practices, and
while I well understand and sympathise with the sheriff's approach, I have come
to the conclusion that it was not open to him to adopt that approach. As I have already indicated,
section 210A defines a "sexual offence" by a list of statutory offences
and common law offences catalogued nomine
juris. In my view, given the
structure of the legislation, when a person has been convicted of a crime not included
within that catalogue, it is not legitimate for the sentencing judge to go
behind the nomen juris, or the
statutory provision, under which the conviction has taken place and
re-categorise the crime so as to make it a conviction for a crime not charged
in order to bring it within the list.
[29] In the case of
the appellant Mr Clark, I therefore move your Lordships to quash the
sentence imposed by the sheriff and of new impose a non-extended custodial
sentence of the same length as the custodial part and thus equivalent to the
custodial part already served. In doing
so I note that the appellant has apparently been of good behaviour since his
release from prison and has co-operated with the supervising authorities.
[30] The appellant James Smith, who was 19 years of
age at the time of the offence and the conviction, pled guilty on 18 December
2006 on a
section 76 indictment. On 29 January
2007 the
sheriff imposed an extended sentence of seven and a half years with effect from
28 September 2006.
He took as the starting point for the custodial part a term of three
years and discounted that by one-sixth (notwithstanding that the plea had been
tendered under section 76).
[31] According to
the sheriff's report the locus of the
offence was an area of parkland at the rear of a primary school. However, the entrance gates to the school are
some 100 yards away from the position in which the offence was committed. A public footpath runs through the park. The offence occurred at about
0910 hours. The complainer had
taken her school age child to the school and was returning home with her
3 year old when she observed the accused in the park. He was holding the front of his jogging
trousers and was masturbating. The
matter was reported to the police and the present appellant was
identified. He admitted in interview
with the police that he had been masturbating in the park.
[32] Mr Smith
has one previous conviction, on 30 June 2006, for an analogous offence in respect
of which he had on 16 August 2006 been placed on probation for two
years with an attached condition to perform unpaid work in the community. However, as we were informed, little progress
had been made with working with Mr Smith under the probation order because
of the commission of the new offence. As
counsel put it to us, the probation work had never had an opportunity to start.
[33] Before us
counsel contended first that on any view the discount of one-sixth was
manifestly inadequate in view of the fact that this was a section 76 plea. Further, little or no account was taken by
the sheriff of the fact that the appellant was himself a victim of sexual abuse
for which he had received no counselling.
His need was for counselling and help.
Despite what the sheriff said about counselling in a custodial setting,
the fact was that none had been given to the appellant during his detention,
from which he had secured interim
release on 12 October 2007.
Since then he had had some form of supervision, with which he had fully
co-operated, from a police officer. But
all of that apart, the sentence imposed by the sheriff was manifestly
excessive. Counsel submitted that the
original sentence should be quashed and that a probation order should be
substituted.
[34] I am in no
doubt that the sentence imposed by the sheriff was excessive. Even assuming an extended sentence to have
been competent, its length was plainly excessive. The initial custodial term of three years
was manifestly excessive. This was a
young man, who had been himself the victim of sexual abuse and may therefore be
assumed to have some greater problems than others in adjusting to sexual
matters. While he is no doubt given to
onanism, the offending nature is that he is given to that habit in public
places such as a park. In my opinion the
sheriff in this case has gone wrong.
There is no doubt in my mind that the sentence should be quashed.
[35] In the event
the appellant has in fact served an equivalent of a term of more than two
years' detention. He was released nearly
eight months ago. There is no evidence
of any further offending. In those
circumstances I do not consider probation now to be appropriate. I would move your Lordships to quash the
sentence imposed by the sheriff and after discounting by one third impose in
lieu a sentence of eight months' detention.
[36] I turn finally
to the case of Liam Fagan. In this appeal, as already indicated, the
only issue relates to the sheriff's purported certification that the offence of
which he had been convicted was a sexual offence as defined in the Sexual
Offences Act 2003. For the reasons which
I have already advanced it appears to me that the sheriff's basis for making
that certification, namely that the offence came within the terms of
paragraph 42 of Schedule 3 to the Sexual Offences Act 2003 was
erroneous. But, as already explained,
that error has the consequence that the possibility of making a determination
under paragraph 60 that there was "a significant sexual element to the
offender's behaviour" is opened up. I
note that the sheriff deferred sentence for good behaviour to a date which was
subsequently extended by virtue of the present appeal to 4 June
2008 and
which had presumably been further extended on that account. One cannot exclude the possibility that any
subsequent offending by the appellant might cast light upon the original
offence. Moreover, in terms of
paragraph 60, the procedural point for the making of a determination under
that paragraph is "imposing sentence or otherwise disposing of the case" I
therefore consider that any determination under paragraph 60 of
Schedule 3 to the Sexual Offences Act 2003 - if such a determination is to
be made - should be a matter for the sheriff on his reconsideration of matters
when he finally imposes sentence or otherwise disposes of the case. I would simply add, that, apart from the fact
that the appellant appears to have been drunk and in company with his child and
her mother at the time of the offence, the terms of the charge to which he pled
guilty were amended from their original terms, which alleged exposure to
children, by removal of the reference to children and substitution of reference
to "a vehicle", which was all in accordance with the position adopted by the
appellant in that he was simply responding in a drunken and exuberant way to a
hummer vehicle which he thought contained "a hen party". The sheriff will no doubt consider whether
the circumstances of this particular offence, having regard to the amended
terms of the charge to which Mr Fagan pled guilty, truly justify a
determination under paragraph 60 of Schedule 3 of the Sexual Offences Act
2003 that the offence involved "a significant sexual aspect to the offender's
behaviour in committing the offence".
[37] In the case of
Liam Fagan, I move that we should thus simply quash the purported certification
and remit to the sheriff to proceed as accords.
|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Eassie
Lord Carloway
Lord Abernethy
|
[2008] HCJAC 35
Appeal No: XC79/07, XC117/07 and
XJ1204/07
OPINION OF LORD CARLOWAY
in
NOTES OF APPEAL AGAINST
SENTENCE
by
(1) GEORGE CLARK
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent;
(2) JAMES SMITH
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent;
and;
(3) LIAM CHRISTOPHER FAGAN
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: Forbes; Drummond Miller, Edinburgh (Clark), McClure Collins, Edinburgh (Smith)
and Dunipace Brown, Cumbernauld (Fagan)
Alt: Mackay, A.D.; Crown Agent
25 June 2008
1.
Extended Sentence
[38] Sub-section 210A(1) of the Criminal Procedure (Scotland) Act 1995
(c 46), which was created by section 86 of the Crime and Disorder Act 1998 (c
37), provides that:
"Where a person is convicted on indictment of a
sexual...offence, the court may, if it -
(a) intends,
in relation to -
(i) a sexual offence, to
pass a determinate sentence of imprisonment; and
(b) considers
that the period (if any) for which the offender would, apart from this section,
be subject to a licence would not be adequate for the purpose of protecting the
public from serious harm from the offender,
pass an extended sentence on the offender".
Sub-section 210A(10) of the Act
states that "sexual offence" "means" certain specified crimes, including "(vi)
lewd, indecent or libidinous
behaviour or practices" (added emphasis) and "(vii) shameless
indecency".
[39] The Full Bench in Webster
v Dominick 2005 JC 65 reviewed
the law on "shameless indecency". It
overruled Watt v Annan 1978 JC 84, which had determined that certain conduct carried
out in private was criminal under the umbrella term "shameless indecency". The Lord Justice Clerk (Gill), delivering the
only substantive Opinion,
specifically did not seek to redefine "shameless indecency", (para [47]). Rather, he restated the law as it existed at
the time of McKenzie v Whyte (1864) 4
Irv 570. The law then had persisted for
many decades. However, dicta of the Lord Justice General
(Clyde) in McLaughlin v Boyd 1934 JC 19 re-directed it down a
road, which led to McDonald's oft quoted phrase "all shamelessly indecent
conduct is criminal" being taken out of context. As a result, various activities, some
involving only adults and undertaken in private, were declared potentially
criminal. The Lord Justice Clerk's
restatement galvanises the distinction between criminal conduct classified as
"lewd, indecent and libidinous
practices" (emphasis added), which is
a specific crime involving a particular class of protected persons (mainly
children) and "indecent conduct", which is only criminal if it occurs in public
view and causes offence in that context.
It is criminal only if it "affronts public sensibility" (para [50]). The Lord Justice Clerk advised that such
conduct should be described under a new nomen
criminis, viz. "public indecency".
The crown has adopted this new terminology, at least to some extent, in
framing charges on complaint and indictment. It is worth adding that,
presumably, a lewd, indecent and libidinous practice committed in public may
also constitute, and be charged as, an act of public indecency.
[40]
The appellant Smith pleaded guilty to a charge, which libelled that he:
"...did commit an offence of public indecency in that
[he] did expose [his] naked private member and masturbate in public view, and
in particular in view of...St Joseph's Primary School, and [SS]
and her 3 year old child..."
The appellant had been placed on
probation for an analogous offence only a few months earlier. The Social Enquiry Report obtained assessed
the appellant as presenting a high risk of re-offending. The Sheriff imposed an extended sentence of
seven and a half years, the custodial element being two and a half years
(discounted from a starting point of three years).
[41] The appellant Clark pleaded guilty to two
charges, which libelled that he:
"...did commit an offence of public indecency in that
[he] did expose [his] person in the presence of [SK]..., then aged 7 years, and
[CR]..., then aged 6 years...thereby placing them in a state of fear and alarm;
... did commit an offence of public indecency in that
[he] did expose [his] person in the presence of [CR], [MC], then aged 9 years,
and [CK]... then aged 11 years,...thereby placing them in a state of fear and
alarm".
The appellant was a first offender
and a three year probation order was imposed.
He breached the order by, amongst other things, committing an analogous
offence. The probation report made it
clear to the Sheriff that the appellant posed a serious danger to children and
was at high risk of re-offending. The
Sheriff recognised the difficulty now raised in this appeal, viz. the absence
of "public indecency" in the list of specific crimes in sub-section 210A(10). He proceeded to impose an extended sentence
of forty months (discounted, presumably in error, from sixty) with consecutive
custodial elements of four and sixteen months (discounted from six and twenty
four). He did so by re-categorising the
offences as lewd, indecent and libidinous practices, despite the specific libel
of public indecency only.
[42] In enacting sub-section 210A(1) in 1998, Parliament provided
that a person who has been convicted of "(vi) lewd, indecent or libidinous behaviour or practices" (emphasis added) or of what was then termed "(vii) shameless indecency"
may be made the subject of an extended sentence. It is of note that paragraph (vi) is not
confined to lewd, indecent and
libidinous practices but to all forms of indecent behaviour. "Public indecency", as it is now called, is a
sub-species of what had become called "shameless indecency". Put another way, all conduct which is now
criminal as "public indecency" would previously have been regarded at least as
"shameless indecency". However the
matter is looked at, if the Court is to act in accordance with the plain
intention of Parliament, acts now classified as "public indecency" must be
regarded as falling within either or both of paragraphs (vi) or (vii) thereby
rendering the offender liable to an extended sentence.
[43] For these reasons, the imposition of an extended sentence on
the appellants Clark and Smith should be regarded as competent and their
appeals on that ground should fail.
2.
Notification
Requirements
[44] Sub-section 80(1) of the Sexual Offences Act 2003 (c 42)
provides that:
"A person is subject to the notification
requirements...if-
(a) he is convicted of an offence listed in Schedule 3;..."
Schedule 3 lists the offences for Scotland, starting
with offence number 36 (rape) and continuing with:
"40 Indecent
assault.
41 Lewd,
indecent or libidinous behaviour or practices. (emphasis again added)
42 Shameless
indecency, if a person (other than the offender) involved in the offence was
under 18.
43 Sodomy,
unless every person involved in the offence was 16 or over and was a willing participant.".
The
final offence for Scotland is:
"60 An
offence...other than is mentioned in paragraphs 36 to 59 if the
court...determines...that there was a significant sexual aspect to the offender's
behaviour in committing the offence.".
The notification requirements of
the 2003 Act have their origin in the Sex Offenders Act 1997 (c 51), to which
specific reference was made in Webster v Dominick (supra para [45]).
[45] The appellant Fagan pleaded guilty to a charge which libelled
that he:
"did commit an offence of public indecency in that
[he] did expose [his] naked private member and gesticulate towards a passing
vehicle to the fear and alarm of the lieges".
The circumstances were that the
appellant had, in a town centre during the hours of daylight, exposed himself
to the occupants of a stretch "Hummer" limousine, full of children between
eight and ten, who were waving out of the windows. The appellant did this with an expression
found to convey a sense of: "look at what I've got". The appellant's somewhat dubious version of
events was that he thought that the limousine would be full of a group of adult
females. The appellant attempted to
avoid the notification requirements of the Act by submitting that the offence
involved "mere horseplay...more akin to a breach of the peace rather than a
sexual offence".
[46] The Sheriff considered that he had no option other than to
certify the offence as a sexual offence, considering it to fall under paragraph
42 ("Shameless indecency"). His
reasoning was that the High Court, sitting in its appellate capacity in Nelson v Barbour 2007 SCCR 283, had considered that Webster v Dominick (supra) had declared the adjective
"shameless" to be superfluous in the context of public indecency. In Nelson
v Barbour, the appellant had
pleaded guilty to an offence of public indecency by exposing himself. No-one under the age of eighteen had been
involved. In the Sheriff
Court, the appellant had been made
subject to the notification requirements because the Sheriff had decided that
there was a significant sexual aspect to the offender's behaviour under
paragraph 60. The High Court held that
this was an error because the appellant had been convicted of an offence under
paragraph 42 ("shameless indecency") and, therefore, paragraph 60 could not
apply. Since the indecency had not
involved anyone under the age of eighteen, the appellant ought not to have been
made subject to the notification requirements.
[47] Following the reasoning outlined in relation to extended
sentences, the appellant's offence might be taken to fall under paragraph 41
(as indecent behaviour) or, perhaps more appropriately, 42 (as a sub-species of
shameless indecency). Once again,
however, if Parliament's intention is to be followed, no practical problem
arises. It is tolerably clear that
Parliament wished to exclude from the notification requirements those offences
classified as shameless indecency where all those involved were over eighteen
years of age. Specifically, it wished to
exclude such conduct where the indecency occurred in private. In light of Webster v Dominick (supra), there
ought not to be any convictions of this nature now. But if there are
convictions of public indecency involving persons all over eighteen, they can
legitimately be excluded from the notification requirements for the reasons
given by Lord Johnston, delivering the Opinion of the Court, in Nelson v Barbour (supra). In the case of the present appellant, his
public indecency offence involved a limousine full of girls well under the age
of eighteen. In these circumstances, the
appellant should be made subject to the notification requirements.
[48] If the view expressed relative to the applicability of
paragraphs 41 and 42 is wrong, then the inevitable conclusion would have to be
that, under paragraph 60, there was a significant sexual aspect to the
appellant's behaviour, whether that behaviour might be regarded as "horseplay"
or not. The appellant would therefore
still be subject to the notification requirements. The appellant's appeal should accordingly be
refused.
[49] It is perhaps worth adding that, in the appellant Smith's case,
although the Sheriff's reclassification of the offences as lewd, indecent and
libidinous practices was not appropriate as such, he was entitled to view the
conduct as indecent behaviour under paragraph 41, even although he might
equally well have proceeded under paragraph 42.
[50] In relation to the lengths of the custodial elements in the
sentences of the appellants Clark and Smith, I agree with Your Lordship in the
Chair that the appeals should be determined as Your Lordship proposes.
|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Eassie
Lord Carloway
Lord Abernethy
|
[2008] HCJAC 35
Appeal No: XC79/07, XC117/07 and
XJ1204/07
OPINION OF LORD ABERNETHY
in
NOTES OF APPEAL AGAINST
SENTENCE
by
(1) GEORGE CLARK
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent;
(2) JAMES SMITH
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent;
and;
(3) LIAM CHRISTOPHER FAGAN
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: Forbes; Drummond Miller, Edinburgh (Clark), McClure Collins, Edinburgh (Smith)
and Dunipace Brown, Cumbernauld (Fagan)
Alt: Mackay, A.D.; Crown Agent
25 June 2008
[51] In these
appeals we are concerned with an important point of statutory
construction. On that matter I agree entirely with the opinion of your Lordship in
the chair. Although I was initially
inclined to the opposite view, I have come to the conclusion that, contrary to
the Advocate depute's submission, public indecency is not a mere sub-species of
what was considered to be shameless indecency before the decision in Webster v Dominick and that the statutory provisions that we are concerned
with in these appeals should not be construed in that way.
[52] As your
Lordship has noted and as the Lord Justice Clerk in Webster v Dominick pointed
out, shameless indecency was an offence created by the decision in Watt v Annan. An essential
ingredient of the offence - and this is what "shameless" meant in this context
- was that the conduct must be directed at some person or persons with an
intention or knowledge that it should corrupt or be calculated or liable to corrupt or deprave those towards whom it
was directed. The essential feature of
the offence of public indecency, on the other hand, is that the indecent
conduct should affront public sensibility.
Before us neither counsel could figure a case of public indecency which
could not have been relevantly charged as shameless indecency prior to Webster v Dominick but your Lordship has given examples of public indecency
in which the offender could not be regarded as a sexual offender and in these
examples also, in my opinion, (and this may in effect be only another way of
saying the same thing) it could hardly be said that there was an intention or
knowledge on the part of the offender that the indecency should corrupt or was
calculated or liable to corrupt or deprave those towards whom it was
directed.
[53] These very
real distinctions make it impossible in my opinion to accept that public
indecency is a mere sub-species of shameless indecency as it was understood
before Webster v Dominick. In my opinion the
one offence is separate and quite distinct from the other.
[54] Turning to the
individual cases before us, in each case I agree with what is proposed by your
Lordship.
