Scottish High Court of Justiciary Decisons

DAVID MORROW v. PROCURATOR FISCAL, LANARK [1999] ScotHC 23 (27th January, 1999)

This is an appeal by way of Stated Case by David Morrow. Mr Morrow was convicted and sentenced at the Sheriff Court at Lanark on 8 August 1997 in respect of five charges. He was fined £300 on each charge. The sentence is not a matter which we need to consider in this appeal. Each of the five charges was a charge of indecently assaulting a girl aged 10 or 11 and in each case the conduct in question consisted of placing a hand on the child's thigh and fondling in ways that are described in the various charges.

The first question in the Stated Case relates to whether there was sufficient evidence to establish that the alleged incidents occurred within certain periods. It is accepted that there was sufficient evidence for the purpose in relation to charges 1, 2, 3 and 5 and to that extent that question would fall to be answered in the affirmative. The question also raised the question of whether there was sufficient evidence to establish that the incidents occurred within an admissible latitude of the date and time in respect of charge 4 and the Crown concede that that question should be answered in the negative. That charge 4 is accordingly quashed.

So far as the remaining charges are concerned, Mr McBride submitted that the question set out at question 2 arises: "Was the sheriff entitled to hold that the assaults in the charges were indecent?" The facts are quite shortly stated in relation to each charge. In charge 1 what had happened was that the appellant had touched the girl's thigh over her clothing and had moved his hand up and down on it for what the child described as a couple of seconds. She then shook her leg and the appellant lifted his hand away. On the second charge what is said is that the appellant had touched the girl on the shoulder and on the right thigh over her clothing where he had rubbed her. Charge 3 involved three occasions, and what was said was that the appellant had touched the girl's shoulder and her right thigh which he had in the girl's words, "patted a little bit". Charge 5, involving another girl, involved the appellant rubbing the girl's shoulder and rubbing her thigh. She could not remember which leg. In that case, as distinct from the others, there was evidence that the girl was distressed at the time of the incident. In all the other cases there was a reaction in varying circumstances by the girls, none of whom appear to have regarded the matter as merely innocent or insignificant. The sheriff has not treated distress as corroborative of the incidents. What the sheriff says is that in respect of charges 1, 2 and 5 he considered that the rubbing action described by the complainers did constitute an indecent assault. Charge 3 was somewhat different in that it was patting rather than rubbing, but in that case, he says that he considered that the repeated patting action described by the complainer constituted an indecent assault. In each case what is contained in the charge on these particular matters is the word "fondle" and in some sense the indecency will turn on the propriety of that word as well.

These were plainly relatively minor offences, but it does appears to us that the whole circumstances have to be looked at in each particular case. The sheriff having considered the whole facts was satisfied that the movements we have described were indecent. We are satisfied that he was entitled to take that view and that in relation to the actual moves described in charge 1, 2 and 5 the word "fondle" is clearly appropriate. That word is perhaps less plainly appropriate in the case of patting, but what really matters in charge 3 is that the patting is a matter which the sheriff was entitled to regard as indecent, even if the word "fondle" is less precise than in the other charges.

On the whole matter we are satisfied that the answer to the question of whether the sheriff was entitled to hold the assaults indecent is affirmative and accordingly he was entitled to convict.