Appeal No: 2972/97
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD PROSSER
APPEAL BY STATED CASE
PROCURATOR FISCAL, STIRLING
Appellant: Scott, Macbeth Currie & Co
Respondent: Solicitor General, Crown Agent
23 February 1999
The appellant, William Boyle, stood trial at the Sheriff Court in Stirling on 30 October and 5 November 1998 on a charge of a contravention of the Criminal Law Consolidation (Scotland) Act 1995, Section 6. The charge was to the effect that at an address in Fallin he used lewd, indecent and libidinous practices and behaviour towards a girl aged 15 years, the specification of the charge being that she was above 12 and under the age of 16 and the facts alleged being that he kissed her on the lips and did various other things with his hand involving her private parts and his private parts.
In the event the Sheriff held the charge established and found the appellant guilty of the charge involving the kissing on the lips but deleting all the allegations of further activity with his hands and involving private parts. The matter comes before us on a stated case in which the question relates not to the eventual conviction but to the earlier stage when the Sheriff repelled a defence submission that there was no case to answer in respect that the conduct did not constitute lewd, indecent or libidinous behaviour. That submission had effectively had two stages to it. It rested on a submission that there was no corroboration of anything other than the kiss on the lips and that so far as the kiss on the lips was concerned that it could not be regarded as falling into the category of lewd, indecent and libidinous behaviour. The issue therefore turns on that particular matter in relation to the kiss. The submission essentially is that "a kiss is just a kiss" and that it should not be held to be lewd, libidinous or indecent. We were directed of course to the statutory history of the matter and in particular to the terms of Section 4 of the 1922 Act which constitutes the background and that of course was extending to girls of between 12 and 16 protective measures which had previously been available for those under the age 12.
The matter appears to us, as was submitted by the Solicitor General, to be essentially a short one. The nature of any act as being lewd, libidinous or indecent will always depend upon circumstances. We are not persuaded that any act such as a kiss is ruled out from being lewd and libidinous. It will depend entirely on the circumstances. The circumstances here appear to us generally to have been lewd and libidinous in a wider sense.
At the time the appellant, who was 18, was in bed with both his girlfriend and the complainer on this charge. He appears to have been naked, or perhaps at an earlier stage at least, wearing boxer shorts only. It appears clear that there had some sexual activity with his girlfriend. There is no doubt that his intentions when he kissed the appellant went beyond a mere kiss. There had been some discussion with his girlfriend in which he said that he wanted to "have a threesome" or various other ways of putting the matter; and when he eventually kissed the complainer it was on the mouth and lasted something like a minute. It appears to us that one is entitled to take into account the whole surrounding circumstances, the background, the expressed intention and also the understanding of the complainer which was, as the Solicitor General pointed out, that she had heard that the appellant had had these further intentions and knew of them when he kissed her on the lips and she did not respond. It does not appear to us that any general principle is involved here. There was ample evidence on which the Sheriff was entitled to see this particular kissing episode as falling within the statutory words and the appeal is refused.