Scottish High Court of Justiciary Decisons

TATE WILSON PATERSON v. ROBERT FERGUSON LEES [1999] ScotHC 14 (22nd January, 1999)

The appellant is Tate Wilson Paterson who was convicted at the Sheriff Court at Edinburgh of two charges, the first being a charge of shameless and indecent conduct and the second being a charge of lewd indecent and libidinous practices. He appealed against his conviction on both charges, but the Crown conceded that his appeal on the second charge should be allowed. We shall accordingly answer Question 2 in the case in the negative and allow his appeal against conviction on the second charge. That leaves the matter of the first charge.

In its original form the first charge was to the effect that the appellant

At the end of the Crown case, however, in answering a submission of no case to answer, the procurator fiscal depute amended the charge by deleting the word "show" and altering the wording so that the averment was that the appellant "did permit them to see" the film in question. The effect of that amendment was to change the allegation from one of positive conduct on the part of the appellant to one of allowing the children to see the film.

The evidence upon which the Crown relied, both in the court below and in this court, was fairly circumscribed. It showed that the appellant had been left in charge of his neighbours' children, including the two complainers, in their house, while the neighbours went out for a drink. The male complainer and his younger brother wanted to watch a video and the appellant told them that there were videos in a bag behind the sofa. There was nothing in the evidence to suggest that the videos belonged to the appellant. The male complainer selected one and put it into the video recorder. The video in question contained a variety of material, a considerable amount of it obscene, including pictures of human sexual intercourse. The appellant was present when the tape was put into the recorder and while it was playing. The two complainers watched the video, including the scenes of intercourse, in the presence of the appellant. The female complainer did not want to watch the video because it was "dirty".

The evidence was sufficient to entitle the Sheriff to hold that the Crown had proved the averment that the appellant "did permit [the complainers] to see a film of an obscene and indecent nature which depicted acts of human sexual intercourse". The argument for the appellant, both in this court and in the court below, was, however, that proof of these facts was not relevant to establish guilt of the crime libelled, shameless and indecent conduct.

In rejecting the submission of no case to answer, the Sheriff took the view that the Crown amendment made no difference and that it did not matter that, instead of putting the video into the recorder himself and showing it to the children, the appellant had simply allowed the children to watch the video. The Sheriff emphasised the fact that, even though the appellant could see the nature of the film, he did not turn it off. He said that what the appellant did could be described as

The Sheriff accordingly rejected the defence submission and in due course convicted the appellant of the libel as amended.

I have no doubt that, in a similar situation, an adult who deliberately showed a video tape containing a film of an obscene and indecent nature, with scenes of human sexual intercourse, to children of nine and eleven would commit an offence at common law. Indeed the Crown originally set out to prove that the appellant had done just that, but on the evidence they failed. The present question therefore arises only because of the Crown's failure to prove the actual case which they brought against the appellant. Doubtless, developments in our law often occur as a result of such accidents, but none the less in these circumstances the court should look with considerable care at any novel interpretation which the Crown proffer to support the conviction.

We are, of course, concerned only with questions of criminal law. The fact that the appellant sat back and allowed the children to watch an obscene and indecent film is deplorable and no right-thinking adult would have done what he did. Saying that does not, however, answer the question before the court since we have to consider, not whether the appellant behaved anti-socially or immorally, but whether he behaved criminally.

The Crown averred that the appellant conducted himself in a shameless and indecent manner towards the complainers. In M'Laughlan v. Boyd 1934 J.C. 19, 23, Lord Justice General Clyde affirmed the general proposition that "All shamelessly indecent conduct is criminal" (Macdonald's Criminal Law (fifth edition), 150). This court accepted that proposition as a sound statement of the law in Watt v. Annan 1978 J.C. 84, 88 - 89 when Lord Cameron explained that conduct is criminal not because it is indecent, but because it is "shamelessly indecent". In some of the cases, however, the term "shamelessly" has been glossed in ways which take it beyond its normal meaning and hence beyond the meaning which, one might suppose, Macdonald would have intended it to bear when he framed his proposition in 1866. As a result, the crime which the adverb is meant to define has become amorphous, with any limits being hard to discern. For present purposes, this makes it all the more important to identify those aspects of the crime which are common to the examples identified by this court. One such aspect is that the accused has done a positive act - whether exhibiting a pornographic film to an audience of adult males or engaging in some form of sexual activity. Here, by contrast, the Sheriff was faced with a situation where, on the evidence upon which the Crown relied in support of this charge, the appellant actually did nothing at all: at most he failed to switch the film off and so permitted the children to watch it. So, by convicting the appellant of shamelessly indecent behaviour in these circumstances, the Sheriff went further than judges in previous cases.

The Sheriff held that the appellant could properly be said to have conducted himself in a shameless and indecent manner towards the children merely by reason of his passive behaviour of sitting back and permitting the children to see the film. If the only point at issue were the interpretation of the word "conduct", the Sheriff's conclusion would appear to me to be, at best, doubtful. But, of course, the real question is one of substance. The Sheriff took what may, in his view, have been one small step for him, but it was one giant leap for the law. By holding that it was criminal for the appellant to do nothing and so to permit the children to view the film, the Sheriff was in effect affirming that our criminal law imposes upon a person in the appellant's position a positive duty to prevent children from seeing obscene and indecent material. Even on the assumption that the appellant was in loco parentis, the Advocate Depute could cite no authority for the existence of such a duty in Scottish criminal law. This is hardly surprising since, for very good reasons, it is only in a limited range of situations that the common law regards a failure to act, even on the part of a parent, as criminal. See the discussion in Gordon's Criminal Law (2nd edition), especially paragraph 3-34.

The potentially far-reaching implications of the common law duty for which the Crown contend in this case are obvious, especially in a world where more and more television channels reach into people's homes and where there is widespread access to the internet. If, in the light of these developments, the criminal law is to impose on parents and others new duties to prevent children from seeing indecent or obscene material and to decree the appropriate punishments for failures to observe those duties, the formulation of those duties and the determination of those punishments are tasks for Parliament rather than for the courts.

For these reasons I am satisfied that the charge in its amended form was irrelevant and that, on the facts proved, the appellant was not guilty of any crime known to the common law of Scotland. I therefore move your Lordships to answer Question 1 in the negative and to allow the appeal.

The appellant was convicted on two charges, namely that he conducted himself in a shamelessly indecent manner towards two young children, a girl and a boy aged respectively 9 and 11, and permit them to see a film of an obscene and indecent nature and, secondly, using lewd, indecent and libidinous practices towards the girl. The Crown has accepted that there was insufficient corroboration to entitle the sheriff to convict on the second charge and we shall accordingly quash that conviction. As far as the first charge is concerned the circumstances were that the appellant was baby-sitting when one of the children wanted to see a video. The appellant told the child that there were videos in a bag behind the sofa. One of the children selected a video with an innocuous title and started to play it. In fact the video had recorded on it material taken from television which was of an obscene and indecent nature. The video was playing for a period of about one hour and during that time the appellant was watching the video himself. It showed scenes of intimate sexual activity between adults and scenes of nudity. The original charge had alleged that the appellant "showed" the children a film of an obscene and indecent nature but the procurator fiscal sought leave to amend to delete that word and substitute "permit them to see". The sheriff's view was that it made little difference whether the appellant himself showed the video or whether the video had been selected by one of the children and the appellant then allowed that child to continue watching when it became apparent that it contained indecent material. The way the sheriff puts it is that what the appellant did may be described as passive action by allowing the tape to continue playing knowing that it contained sexual explicit material, and that by not turning the video off in these circumstances the appellant was then intending that the children should watch it.

Counsel for the appellant raised two issues. In the first place he submitted that there was insufficient material before the sheriff to entitle him to come to the conclusion that this was shamelessly indecent conduct. Secondly he submitted that in any event the worst that could be said about the appellant's conduct was that it was an omission and while an omission may be criminal in certain circumstances it cannot be criminal in circumstances such as the present. The fact that the appellant might have a moral duty towards the children does not mean that by failing in that duty he is committing a criminal act.

In Watt v. Annan 1978 J.C. 84, where the charge was one of exhibiting a film of an indecent or obscene nature which was liable to corrupt the morals of the lieges, it was said that it is not the indecency of the conduct itself which makes it criminal but it is the quality of shamelessness. The view of the court was that in such circumstances as the facts of that case the conduct in order to be criminal 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. It was also said that it would be impracticable as well as undesirable to attempt to define precisely the limits and ambit of this particular offence.

It is in my view impossible to produce a definition of shamelessly indecent conduct which encompasses all forms of such conduct. Indeed one of the criticisms of the whole concept of shameless indecency is that it is an amorphous offence which can gradually extend its boundaries and thus become an offence which can only be defined by reference to what the court may class at any time as being shameless. The advocate depute for his part accepted that in all cases of shameless indecency the Watt test falls to be applied and accepted that it would accordingly be necessary for the Crown to prove that the conduct was liable to deprave or corrupt. Whether particular conduct falls into that category will depend on the facts of each case but factors of importance are the age of the persons liable to be corrupted, and in the case of children, whether or not the accused is in some position of trust (see H.M. Advocate v. Batty 1995 SCCR 525). For my part I am not convinced that in all cases it is necessary that there should be the element of liability to deprave or corrupt. There may be cases where the conduct is of such a nature as to offend against any reasonable standard of public decency or morals and can thus be described as shamelessly indecent. For example, if two people stripped naked in full view in a public park and commenced having sexual intercourse the necessary criteria would appear to be present for shameless indecency, although perhaps it would be more appropriate to categorise such conduct as being included in the equally amorphous offence of breach of the peace. However, in cases such as the present involving the demonstration of pornographic material to young children I have no doubt that the advocate depute is correct in saying that the Watt test has to be applied. What also has to be borne in mind, however, is that shamelessly indecent conduct is an offence at common law and thus involves the element of mens rea. There must accordingly be shown an intention to commit the offence which in turn involves an intention to show the material either intending to corrupt or deprave or at least in the knowledge that the material is of such a nature that it is liable to corrupt or deprave. In my view, therefore, if the book, magazine, video film or other material is of an indecent and obscene nature and that material is deliberately shown to a young child or children the inference can readily be drawn that the person showing the material is guilty of the offence of shameless indecency in that he must have known that the showing of such material would be liable to corrupt or deprave the child, and it is difficult to see what other intention he might have had.

The present case, however, is complicated by the fact that while the original charge alleged that the appellant showed this video to the children, the amended version reduced the charge to being one of permitting the children to watch the video. There is no doubt in the present case that the appellant took no part in the selection of the video and, indeed, as it was not his house, he may well not have known what the video contained before it was inserted into the machine. It is, of course, quite clear from the findings in fact that the appellant would soon become aware that indecent material was being shown on this video and equally it is clear that he took no steps to stop the children watching this material by switching the video off. The question then becomes whether his passivity constituted the criminal offence of shamelessly indecent conduct. In my opinion the circumstances of the present case do not disclose conduct of such a nature. It may be that any adult person would have a moral duty to shield young children from material of this nature, although it should be pointed out that the activities shown on this video were apparently of what might be described as normal sexual activity as opposed to any particularly degrading form of sexual activity. The fact that someone may fail in a moral duty, however, does not automatically mean that his conduct can be categorised as criminal. I do not find in the evidence in this case anything which would indicate that the appellant intended that the children should be corrupted or depraved or, indeed, that he took any active steps at all. The high water mark of the Crown case is that the appellant, in the knowledge that the video was of an indecent nature, took no steps to stop the children from viewing it. In my view, despite the amorphous nature of a charge of this kind, limits have to be drawn somewhere and I consider that this case falls outwith the acceptable limits. For these reasons I would allow this appeal.

The decisions in M'Laughlin v Boyd 1934 J.C. 19 and Watt v Annan 1978 J.C. 84 established that the proposition "all shameless indecent conduct is criminal", found in Macdonald's Criminal Law (5th Edition) 150, is a correct general statement of a rule of law. The proposition occurs in a section headed "Indecent Practices" which begins by setting out firstly that it is a crime wilfully and indecently to expose the male private parts in view of women in public places and secondly that lewd, indecent and libidinous practices towards children, tending to corrupt the morals of the young, are criminal, although there be no assault. Macdonald gives wilful and indecent exposure of the private parts before young children as an instance of this offence and continues,

Macdonald then instances indecent handling of children as another example of a similar offence and he, or the editor of the 1948 edition of his works, goes on to deal with exposure to and practices upon females both at common law and under the Criminal Law Amendment Act 1922. He then deals with the statutory offence of gross indecency between males, also under the 1885 Act, and proceeds,

In the absence of other authority, I might have been inclined to the view that Macdonald was concerned only with a limited crime, namely indecent exposure or lewd and libidinous practices involving indecent handling of children. In its context, the sentence on which so much attention has been fixed might have meant no more than that it was not necessary to define what forms of indecent exposure or indecent conduct in the presence of other persons was criminal. The word "shameless" in its context would appear appropriate in relation to public conduct causing offence.

However, the decisions in M'Laughlin v Boyd and Watt v Annan have taken Macdonald's proposition as a free-standing definition of a crime. The nature of that crime was explained in Watt v Annan, which was a case of an obscene film shown behind locked doors in private to a selected and consenting audience. In his opinion at page 88, Lord Cameron noted the statement from Macdonald and its approval by the court in M'Laughlin v Boyd, although he appreciated that the observations in that case were obiter. He went on to say,

It is of course true that it is very difficult to define what sort of conduct is indecent or obscene, a matter which in any event may be affected by social changes. What is difficult to follow in Watt v Annan is how the addition of the qualification that the conduct must be shameless, in the broader sense which the court apparently gave it, advances the matter at all. On that ground, forceful criticisms have been expressed of the development of the crime of shameless indecency, both as unwarranted by previous authority and as lacking proper determination. Those are criticisms with which I have a great deal of sympathy. The correctness of the decision in Watt v Annan is not a matter with which this court could deal, but I think that the fact that there is doubt about the definition of the crime can legitimately be borne in mind when considering the particular problem which arises in this case. In many contexts, I would be inclined to regard a distinction between doing something and allowing it to happen as a somewhat thin one, particularly in a context in which the responsibility of an adult for the welfare of children was in issue. However, in the case of this particular crime it seems to me that a limit to its amorphous extension must be placed somewhere. I note also that Lord Cameron in Watt v Annan did stress the importance of mens rea and emphasised the Crown's acceptance that there must be conduct directed towards some person or persons. That being so, it seems to me that, once it had been decided that the appellant had not taken any positive step to show the indecent film to the children, there was no relevant charge left. I therefore agree that the appeal should be allowed.