Scottish High Court of Justiciary Decisons

The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Mayfield and Lord Sutherland for a hearing on 28 April 1995. Eo die, their Lordships made avizandum.

At advising, on 19 May 1995, the opinion of the court was delivered by the Lord Justice-General (Hope).

OPINION OF THE COURT—The appellant went to trial in the sheriff court at Dingwall on an indictment which contained two charges. The first was that, between November 1983 and August 1989, at a school in Fortrose where he was employed as a house parent, he repeatedly used lewd, libidinous and indecent practices towards five female pupils of that school then aged under 16. The second was that in September 1989 he conducted himself in a shamelessly indecent manner towards one of these pupils and had sexual intercourse with her.

An application had been made by fax for a preliminary diet on the ground that the appellant wished to raise a matter relating to the competency or relevancy of the first charge, but it was rejected by the sheriff clerk as not being in proper form. No further steps were taken to raise this matter prior to the leading of evidence. When an objection was taken during the evidence of the first complainer on the ground that she was speaking to an act of indecency when she was over the age of puberty, it was repelled by the sheriff, as it was an objection which ought to have been taken at a preliminary diet or, by leave of the court, before the leading of evidence: sec 108(1) of the Criminal Procedure (Scotland) Act 1975. At the end of the Crown case the procurator fiscal withdrew the second charge. He was given leave to amend the first charge in various respects and to convert it into five separate charges. A submission was then made that there was no case to answer, which the sheriff repelled. The appellant then gave evidence on his own behalf. At the end of the trial he was found guilty on all five charges in the amended indictment. His case was remitted to the High Court for sentence, following which he received a sentence of five years' imprisonment.

An appeal was then lodged on his behalf against his conviction, in which it was stated that a miscarriage of justice had occurred on four grounds. The first was that the sheriff erred in admitting the evidence of the complainers insofar as they spoke to events which had taken place after they had attained the age of puberty. The second was that he erred in refusing the submission that there was no case to answer, on the ground that the evidence concerned events when the complainers were aged between 13 and 16 years and that there was no evidence of events which might constitute the crime of lewd, libidinous and indecent practices at common law. The third and fourth grounds were that the sheriff misdirected the jury as to what was required for proof of a charge of lewd, libidinous and indecent practices at common law and when he told them that there was sufficient evidence which would entitle them to convict the appellant on the charges as libelled against him in the amended indictment. Counsel did not seek to insist on the first two grounds when he addressed us on the appellant's behalf in support of the appeal. He directed his argument to the third and fourth grounds only, under reference to the way in which the five charges which the appellant faced in the amended indictment had been libelled against him.

All five complainers gave evidence, and there was evidence also from the principal of the school and his depute and from a houseworker as well as from two police officers. Four out of the five girls were under the age of 12 years in November 1983, but they were all over the age of 12 years when they entered the house and the evidence about the appellant's behaviour towards them related exclusively to periods when they were over the age of 12 years. Apart from certain conduct in a henhouse which involved one complainer, all the behaviour complained of took place in the residential school building where the appellant was a houseparent. Part of his duties involved him in sleeping overnight in a bedroom which was part of the girls' wing. The evidence was that the acts libelled were committed partly in bedrooms shared by two of the complainers and partly in the bedroom used by the appellant when the complainers were with him on their own.

When he came to give the jury directions about the crime libelled, which was of lewd, libidinous and indecent practices, the sheriff told them that it was established under the common law that such conduct to a girl under 12 is a crime irrespective of the attitude of the victim. He then pointed out that in this case all the girls were over 12 when they entered the house, and he invited them to consider what their attitude had been to the alleged behaviour of the appellant. He invited them to consider whether they were active participants or passive instruments who, because of their age, immaturity and emotional state in contrast to the age, position and authority of the appellant, and what he described as the quasi-parent and child or teacher and pupil relathip, [felt] that resistance was futile. He went on to say this: ‘You see this form of criminal conduct is really a type of what we lawyers call shameless indecency and this is a very broad crime but it may include such lewd, libidinous and indecent practices depending on the particular circumstances. Shameless indecency occurs when the accused is so lost to any sense of shame that he behaves in the manner libelled. In other words when the accused uses his judgment in an indecent and shameless fashion, the quality of shamelessness arises not from the physical conduct itself considered simply of sexual behaviour between any male and female but from the nature of the relationship between the accused in his capacity as houseparent and the girl in her capacity as his charge. In effect during her period at Raddery School the girl would have been expected to view the accused as someone who was in a position of trust or authority to her throughout the period she remained as a pupil. Accordingly if you find that the relationship of house parent to pupil existed between the parties at the relevant time, that is a matter of proof and that the acts libelled were deliberately committed by the accused, then it follows he was conducting himself in a shamelessly indecent manner and you are not called upon to make any value judgments as to whether what was done was in your view shamelessly indecent, you are entitled to find the accused guilty.’

Counsel submitted that the common law crime of lewd, libidinous and indecent practices could only be committed against a complainer who was under the age of puberty. But he did not seek to argue that it was not open to the Crown under this indictment to seek to obtain a conviction on the ground that the acts complained of amounted to shameless indecency. We understood him to accept also that there was sufficient evidence in law for the jury to be entitled to find that the appellant committed the acts of indecency libelled in all five charges. His criticism of the sheriff was directed to the question whether this conduct had the necessary quality of shamelessness. He said that the question would not have arisen if the girls had been under the age of 12 years, but that it must now be accepted, despite what was said in McLaughlan v Boyd,that the crime of lewd, libidinous and indecent conduct was restricted to cases where the complainers were under the age of puberty. This was because of the terms of sec 5 of the Sexual Offences (Scotland) Act 1976, which provides for a statutory crime of using such behaviour towards a girl of or above the age of 12 years and under the age of 16 years. In Watt v Annan at p 88 Lord Cameron said that it was not the indecency of conduct itself which made it criminal but it was the quality of shamelessness. In the present case, however, the sheriff had not given sufficient directions to the jury to enable them to determine this matter. The relationship between the appellant and the complainers was not of itself such as to enable this point to be left to inference. The jury should have been told that the question was whether the relationship was of such a kind that the appellant must have known that it would be shameless for him to commit acts of indecency with the complainers. He submitted that the absence of an express direction to this effect amounted to a misdirection which had given rise to a miscarriage of justice.

The learned advocate-depute submitted that there was no fixed rule that the crime of lewd, libidinous and indecent practices required proof of the age of the complainer or that the complainer had to be below the age of puberty. But his principal argument was that charges of the type which were described by the libel in this case could not be regarded as anything other than charges of shameless indecency. This was inevitable in view of the relationship between the appellant and the complainers which was described in the libel. The relationship between his employment as houseparent in the school and the female pupils who were resident there was clearly one which placed them in his care. The result was that any indecent conduct of the kind described could not be said to have been anything other than shameless on his part. Reference was made to sec 44 of the Criminal Procedure (Scotland) Act 1975 in support of the submission that it was not necessary for the indictment to have described the crime as one of shameless indecency, it being sufficient that it had set out facts which were relevant and sufficient to constitute an indictable crime. The advocate-depute submitted that the sheriff was right in these circumstances to deal in his charge with the crime of shameless indecency, and that the directions which he gave were appropriate in the circumstances.

It is not necessary for us in this case to express a concluded opinion as to whether the common law crime of lewd, libidinous and indecent practices and behaviour must be confined to cases where the complainer is under the age of puberty. Neither side chose to address us in detail on this point, as it was accepted that the real issue in this appeal is whether the sheriff's directions to the jury on the crime of shameless indecency were appropriate in the light of the evidence. It seems to us, however, to be clear that the balance of authority is now in favour of the view that the age of the complainer is not of the essence of the crime of lewd, libidinous and indecent practices and behaviour. Macdonald on the Criminal Law of Scotland (5th edn) at p 150 contains a clear statement to the contrary, but neither there nor in Lockwood v Walker, which proceeded on the view that in the case of a girl the injured party had to be under the age of puberty, was there any detailed examination of the point as one of principle. Hume in his Commentaries on the Law of Scotland Respecting Crimes, vol i, pp 309-310, lays stress on the risk to which girls of less than mature years are exposed before they have attained to sufficient intelligence or discretion to defend themselves when faced with such practices. But the early authorities recognised no clear dividing line below and above the age of puberty in the case of such practices perpetrated against boys. In McLaughlan v Boyd, where the two complainers appear to have been male and not female and there was no evidence of their age, Lord Justice-General Clyde said that it was impossible to maintain on the authorities that, by the law of Scotland, indecent conduct committed by one person upon another only constitutes a crime when the victim of this conduct is below puberty, irrespective of whether the victim is male or female. He added that, if a hard and fast line at that age was not warranted by the authorities, it was impossible in principle to fix any standard of age, although the age of the victim might be an important consideration depending on the circumstances. Lord Blackburn and Lord Morison were of the same opinion, and we are not aware of any later case in which these observations have been criticised. It may also be said that the introduction of a statutory offence in regard to such practices and behaviour towards girls between the ages of 12 and 16, first introduced by sec 4(1) of the Criminal Law Amendment Act 1922, is not necessarily inconsistent with conduct of this kind being criminal also at common law, although Parliament does appear to have legislated on the assumption that it would not be.

In practice a fixed rule about age for this kind of conduct ought not to give rise to difficulty, although the age of the complainer will always be relevant. The statutory offence in terms of sec 5 of the 1976 Act is available in the case of girls of or about the age of 12 years and under the age of 16 years, and gross indecency between males of any age is now punishable in terms of sec 7 of that Act. There may be cases, of which the present is an example, where prosecution for the statutory offence may be thought to be inappropriate because of the limitations placed on the statutory penalties. In such cases it will be necessary to proceed under the common law. But the age of the complainer will not be a critical factor, so long as the conduct complained of falls within the scope of the crime of shameless indecency. Authority for this approach is to be found in Lord Morison's opinion in McLaughlan v Boyd at p 23 where he said: ‘I agree with the views which have been expressed by your Lordship that the principle of our law is that all shamelessly indecent conduct is criminal, and that the charges in this complaint were charges of that nature. It seems to me quite immaterial that the adjectives "lewd" and "libidinous" are used in the complaint, because the words "shamelessly indecent" would have been just as good.’

The statement that all shamelessly indecent conduct is criminal made its first appearance in the first edition of Macdonald's Criminal Law, as Lord Cameron observed in Watt v Annan at p 88. It has been criticised in Gordon on Criminal Law (2nd edn), para 36-19, as being too broadly stated to be acceptable. But it was approved by all the judges in McLaughlan v Boyd and it was approved also by the court in Watt v Annan. Furthermore, as Lord Cameron pointed out at p 88 in that case, it is not the indecency of the conduct itself which makes it criminal but the quality of shamelessness. The question in each case is whether that necessary requirement has been demonstrated. In the case of complainers who are below the age of puberty the nature of the conduct and the age of the child will provide all that is needed on this point. When the child is at or above the age of puberty, something else is needed to demonstrate that the conduct complained of has the quality of shamelessness which is required to render it criminal. This point cannot be made the subject of fixed rules and each case will depend on its own facts.

In the present case the Crown's argument was that the quality of shamelessness was to be found in the relationship between the appellant and the complainers and the nature of the acts of indecency which were described in the evidence. Two questions then arise, namely whether it was open to the jury, on the facts of this case, to hold that what the appellant did had the necessary quality of shamelessness and, if so, whether the directions which the sheriff gave to the jury on this point were sufficiently complete and accurate to give them the guidance which they needed to decide this issue.

As to the first point we are in no doubt that the relationship between the appellant as houseparent and the complainers as girls in his charge was such that indecent conduct by him towards them could properly be held to be shameless. This was a relationship of trust, which placed the girls in his house under his care and authority. It was pointed out by counsel that, while the appellant's relationship towards the girls was that of houseparent and therapist, the girls were away from the school at weekends and during school holidays. But this does not mean that the relationship was merely a transitory one. It was present at all times while the girls were in the house and the appellant was doing what he was employed to do. As to the second point we consider that the sheriff's directions in his charge were appropriate to the facts of this case. What the jury were being asked to do was to examine the relationship and the conduct which had been described in the evidence. They were being asked to decide whether the relationship of houseparent to pupil existed between the parties at the relevant time and they were told that, if that relationship existed and the conduct complained of was deliberate, not accidental, they were entitled to find the appellant guilty. In our opinion it was not necessary for the sheriff to go further, on the facts of this case, and we are not persuaded that there was a misdirection.

For these reasons this appeal against conviction must be refused.