APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 1141/99
OPINION OF THE COURT
delivered by LORD McCLUSKEY
in Appeal by
PROCURATOR FISCAL, Cupar
Appellant: Sudjic, Solicitor Advocate; Fyfe Ireland
Respondent: Mulholland, A.D.; Crown Agent
8 October 1999
The appellant appeared for trial in the Sheriff Court at Cupar on a complaint containing three charges. The first charge was libelled in the alternative. The first branch of the alternative libelled a breach of the peace. The second, founding upon the same conduct, was a charge of shamelessly indecent conduct towards a named person. Charges 2 and 3 were shamelessly indecent conduct towards persons named.
The sheriff has submitted two questions for the Opinion of the Court. The first question raises the applicability to charge No. 1 of the Moorov doctrine. However, Mr. Sudjic, who appeared for the appellant, indicated that he had no point to raise in relation to this matter and invited the court to find it unnecessary to answer the first question. We shall accept that invitation. The substantial issue is raised by the second question appended to the stated case.
Mr. Sudjic pointed out that the sheriff referred throughout the stated case to "indecent exposure": however, the charges were framed as charges of shameless indecency. In reply on that aspect of the case, the advocate depute referred us to Lees, Petitioner 1998 S.C.C.R. 401 in which it was reaffirmed that indecent exposure is a form of shameless indecency. That being so, nothing turns on the use by the sheriff in the case, and in question 2, of the term "indecent exposure".
The procurator fiscal had intimated at the conclusion of the Crown case that he was not seeking a conviction on the first alternative contained in charge 1, the breach of the peace charge, and that he was therefore seeking convictions in respect of three shameless indecency charges. It is clear from the findings in fact that the conduct which gave rise to the three charges was broadly of the same character in each case. In relation to the first, Mrs. Julie Makein a neighbour of the appellant at Robertson Road, Cupar, was going up the driveway shared by the flats occupied by the appellant and by herself. The shared driveway was a public way sometimes used by school children; it was situated a short distance from the accused's front window. When she was some half way up the driveway, and perhaps 24 feet from the appellant's front room window, she noticed that the two centre lights were on in the appellant's front room and that he was standing at the window naked but with a towel or item of clothing in his left hand. It appeared to her that the appellant was looking at her. She was shocked. When he was later cautioned about the matter by the police the appellant did not deny that he had been standing naked there on the occasion in question but he claimed that he had not seen anyone and had not thought that anyone could see him. He also explained that he could not see a person at that distance (24 feet or so) without his contact lenses in. The findings in fact make it plain that the appellant's ability to distinguish anything other than colour and blurred images over a distance of a few yards was very impaired. The second charge relates to a similar occurrence the following morning but on that occasion the neighbour who saw the appellant in a state of undress at the bedroom window of his flat was looking from her dining room window; that was situated in the back of her house and faced towards the appellant's flat, some 30 yards away. She thought that the appellant was staring at her. She could see only the upper part of his body. Some quarter of an hour or so later, having taken her child to neighbours (Mr. and Mrs. Lamb) who were to baby-sit the child, she returned and saw the appellant still at the window. She then observed that he was completely naked, was touching his genitals, and was using both hands to hold his penis. The lights were fully on in the room and the curtains were fully drawn back. The appellant remained in this position handling his genitals for at least five minutes. She observed the same phenomena from two other windows in her house. Mr. and Mrs. Lamb had also seen the appellant on more than one occasion that morning standing close to the bedroom window with no clothes on and fondling his private parts. Mr. Lamb telephoned the police. By the time they came they were unable to get any reply from the appellant's address; they advised Mr. Lamb to use his video camera to record any such happening in the future. In the mid afternoon, Mrs. Laing again observed the appellant completely naked in his front room and it appeared to her that he was again looking in her direction. She told Mr. Lamb who then observed the appellant naked and apparently playing in some way with his penis. He used his video camera to record the scene and noted that the appellant gave himself at least a partial erection while at the window. On the basis of the evidence before him the sheriff had no difficulty in coming to the conclusion that the appellant had in fact behaved in the manner described by the witnesses, and he specifically rejected the appellant's evidence to the contrary. He also concluded that even if the appellant was not been wearing his contact lenses at the material times and would thus be unable to know, as a matter of observed fact, that other persons were present in the vicinity he must nonetheless have been aware that he was at lighted windows and that he was standing in an exposed condit
Mr. Sudjic submitted that there was no finding in fact that the appellant had exposed himself deliberately to any person. The sheriff had accepted that the evidence did not warrant the conclusion that the appellant was staring "at" the persons named in the three charges. That had led the sheriff to substitute the word "towards" for "at" in each of the charges before finding them established. That being so, Mr. Sudjic submitted that, although the circumstances might in each case have warranted a conviction of breach of the peace, they did not warrant a conviction of shameless indecency, because it was essential for the Crown to establish that the appellant knew or must have known that he was being observed when he behaved as he did at the windows of his house. He submitted that a person was entitled to do what he liked within the privacy of his own home; and sexually explicit conduct did not become shamelessly indecent conduct unless the person engaging in it had a substantial reason to believe that somebody was observing him. It was submitted that there was no evidence before the sheriff to entitle the sheriff to infer that the appellant should have realised that he would be seen. It was submitted that the behaviour proved against the appellant could be characterised as shameless indecency only if it was directed towards another person or persons or if it was shown that the appellant was recklessly indifferent as to whether or not anyone was able to observe it. There had to be proof of an intent to have an effect upon others or at least proof that the appellant was recklessly indifferent to the effect that his behaviour might have upon others. Reference was made to Watt v. Annan 1978 J.C. 84. He also submitted that the sheriff's reasoning was flawed by his reference to paragraph 9(3) of Schedule 3 to the Criminal Procedure (Scotland) Act 1995, which contained provisions not applicable in the present case.
In reply, the advocate depute conceded that the reference to paragraph 9(3) of Schedule 3 to the 1995 Act was inappropriate and that the sheriff was in error to refer to it. However, that error was immaterial. We agree. The advocate depute also submitted that it was competent for the sheriff to substitute "towards" for "at", because that alteration did not change the character of the offence; it simply reduced to some extent the seriousness of it. In the advocate depute's submission, shameless indecency taking the form of indecent exposure could be committed by a male person who exposed his private parts in circumstances such as were described in the findings in fact. The mens rea for shameless indecency could be found not only when the person engaging in the conduct was in fact aware that others were observing what he was doing but also in circumstances in which the evidence warranted the conclusion that others were quite likely to observe what was happening and that he, the actor, was recklessly indifferent as to whether or not he was observed. He founded in particular upon the Opinion of Lord Cameron in Watt v. Annan supra, at page 89,
"In my opinion therefore it is not essential to the relevancy of a charge of shamelessly indecent conduct that it must be libelled that the conduct in question occurred in a public place or was a matter of public exhibition. The case of Mackenzie v. Whyte (1864) 4 Irvine 570 makes it clear that the offence of indecent exposure, an offence against public morals, 'consists of a person exposing himself in a state of nudity in a public place or where he can be seen by a multitude of persons' - see per Lord Justice Clerk at p. 577. It is therefore no more essential that an offence of shamelessly indecent conduct, within which category indecent exposure falls, should be libelled as having been committed in a public place than it is in a charge of lewd and libidinous practices, which is an offence whether committed in domestic privacy and secrecy or in a place of public resort". (Italics added).
The advocate depute submitted that the Crown did not have to prove that the person had actual knowledge that he was being observed. It was sufficient to prove (1) that the appellant had deliberately and persistently exposed himself completely naked, revealing his private parts, (2) that the circumstances were that he was recklessly indifferent as to whether or not he was observed to do so and (3) that he was in fact observed naked and handling his genitals.
In relation to the matter of the amendment by the sheriff of the complaint we consider that the sheriff was entitled to substitute the word "towards" for the word "at" in each of the three charges, because that alteration to the wording of the charge did not change the character of the offence nor did it make the offence more serious. On the contrary, it reduced the seriousness of the conduct to some degree by the acceptance that the conduct was not deliberately aimed at persons actually known to be present but was recklessly engaged in by the appellant who was quite indifferent as to whether or not he was actually seen by anyone. We are satisfied that proof of actual knowledge that some other person is in fact witnessing the indecent exposure is not an essential ingredient in a charge of this kind. If it were, a person who donned a blindfold and put thick wax into his ears would be able to claim that he was in fact ignorant as to whether or not there were any to witness his sexual displays on to the street from his illuminated windows. In our view, the mens rea necessary for committing the crime of shameless indecency can be properly inferred in circumstances where the accused person was in fact observed behaving as the appellant did behave, where the likelihood was that there would be persons who would observe what was being done and that the appellant was recklessly indifferent as to whether or not he was observed. In the present case, on the facts found, the appellant must, at least, have chosen to stand in a clearly visible place at the window without his contact lenses, and thus unable to see more than a few yards, and paraded his nakedness and played with his genitals in close proximity to places and houses from which he could readily be observed and at times when there were likely to be persons in such places and houses. In the circumstances, we consider that there was ample material to warrant the conclusion which the sheriff drew from the facts.
The second question is framed in a somewhat restricted way. We shall therefore content ourselves with answering that question by holding that the sheriff was entitled to convict the appellant of the charges as amended.