Scottish High Court of Justiciary Decisons

GRANT IAN MACPHERSON v. PROCURATOR FISCAL, PAISLEY [2000] ScotHC 39 (24th March, 2000)

[1] On 26 May 1999, the complainer Grant MacPherson appeared in the Sheriff Court at Paisley on a complaint containing a single charge, in the following terms:

He was unrepresented and pled guilty to that charge as libelled. In his report to this court, the sheriff tells us that he advised the complainer that the nature of the offence was such that he would require reports and that he should obtain legal advice. The sheriff adds that he also indicated that he considered that the complainer might be "subject to registration in terms of the Sex Offenders Act 1997", and that he would expect to be addressed on that point by both the Crown and the defence when the case next called.

[2] The case next called on 15 June 1999, when the complainer was represented by a solicitor. The outcome of the proceedings on that date was that the sheriff imposed a fine of £500, and in addition, according to the minute sheet, "Certified in open court in terms of section 5(2) of the Sex Offenders Act 1997 that the offence is a sexual offence to which Part I of that Act applies, conform to Certificate attached hereto." The certificate, dated 15 June 1999 states the date of conviction (26 May 1999) and the date of sentence (15 June 1999) together with a note of the offence as "shameless indecency". It continues in the following terms:

These last three words would naturally read as referring to the date of conviction. However, the minute sheet for 26 May contains no indication that any such statement was made in open court on that date, and as we have noted the sheriff indicates in his report that in this respect, he spoke in different and more limited terms on that date. While it appears from a docquet on the certificate that a copy certificate and notice were given to the complainer on 15 June, the attached notice containing a summary of the notification requirements which must be complied with states inter alia that "These requirements apply to you from 26 May 1999 and shall continue to apply for five years." That is clearly unsatisfactory. The Bill itself refers to the events of 15 June, and narrates that the complainer was fined £500 and that "the sheriff made a statement under section 5(2)(a) of the Sex Offenders Act 1997". The Bill seeks suspension simpliciter of "the order made by the sheriff" - which in the circumstances is evidently a reference to what was "certified in open court" according to the minute of 15 June 1999.

[3] The events of 26 May and 15 June 1999, as recorded in the minutes and reflected in the documentary certificate and attached notice, and as described in the Bill and the sheriff's report, do not seem to have followed the course which one would expect, and in some respects is required, by the provisions of the 1997 Act. And some of the terminology which is used does not relate well to the language of the Act. Again, that is not satisfactory. Such problems are not, however, the basis upon which the complainer seeks suspension. The contention is the fundamental one that in the circumstances there was no basis for the sheriff to conclude that any person under the age of 18 had been involved in the offence within the meaning of the Act, and that accordingly he erred in law in holding that the offence was one to which Part I of the Act applied. Before coming to that issue (and returning briefly to the procedural history) it is convenient to set out certain of the relevant provisions of the statute.

[4] Section 1 of the Act provides that a person becomes subject to the "notification requirements" of Part I if inter alia he is convicted of a sexual offence to which Part I applies. Section 2(1) provides that a person who is subject to the notification requirements shall before the end of the period of 14 days beginning with the "relevant date" notify to the police certain information. In terms of section 1(8) of the Act, the relevant date means, for present purposes, the date of the conviction. In addition, section 2 sets out a substantial number of further notification requirements.

[5] These being what one may call the substantive provisions by which a person becomes subject to the notification requirements, we turn to certain procedural provisions contained in section 5. Section 5(2) applies when a person is convicted of a sexual offence to which Part I of the Act applies, and so far as relevant to the present case is in the following terms:

These provisions are not in our opinion entirely easy to follow; but we need not go into them in detail for present purposes.

[6] The provisions governing the application of Part I of the Act are to be found in paragraph 2 of Schedule 1 to the Act. Paragraph 2(1) provides as follows:

Heads (b) to (d) of paragraph 2(1) specify a number of other offences. Paragraph 2(2) provides as follows:

Heads (b) to (f) of paragraph 2(2) make certain further provisions to the effect that various other paragraphs do not apply in particular circumstances relating to age. Paragraph 2(3) is not in point for present purposes. It is not disputed that the offence set out in the present complaint is "shameless indecency" for the purposes of paragraph 2(1)(a)(vii), or that in terms of paragraph 2(1) Part I of the Act applies to that offence. But in terms of paragraph 2(2), paragraph (a)(vii) does not apply "where every person involved in the offence" other than the offender was 18 or over. Put shortly, the complainer's position is that there was no one "involved in the offence" under the age of 18. The sheriff has proceeded upon the basis that there was a person or persons "involved in the offence" of under that age.

[7] In order to consider that issue, it is necessary to consider both the terms of the charge to which the complainer pled guilty, and the factual narrative given in court, which provides the basis for that plea and for the court's disposal of the matter. The sheriff informs us that the procurator fiscal depute gave the following narrative:

(It is unfortunate that the expression "the complainer" is here used to refer both to the complainer in the Bill and to the "complainer" in its customary sense of a person who is subjected to, or the victim of, the offence in question - but the meaning is clear).

[8] It is to be noted that there is no suggestion in this narrative that either of the two children mentioned was facing, or saw, or could, without being moved, have seen what the complainer Mr. MacPherson was doing. It is not disputed, on his behalf, that the two children, and the other lady, were "present" but the narrative contains no suggestion that anybody else was present. Relating this factual position to the terms of the charge, counsel for Mr. MacPherson submitted that the only relevant person was the person specifically mentioned, S.A. But he did not go so far as to argue that in moving from the general expression "in the presence of the lieges" to a reference to the presence of a named individual, one must read a charge such as this as having been narrowed from the general to the particular. Nor was it suggested on either side that the continuing use of antiquated language was significant: the general expression "in the presence of the lieges" was treated as equivalent to "in the presence of others" - language which would be clearer and more readily comprehensible.

[9] Having heard this narrative, the sheriff was addressed in mitigation. Despite what he had said at the earlier diet, he says that "neither party was prepared to address me on the question of the appropriateness of an order." He observes that "this was a little irritating", as he was aware of an unreported case in which he says that a similar point arose. He refers to that case at some length, and notes that this court passed a Bill of Suspension which he says was "on the same grounds as those advanced now, namely that the two ladies named in the complaint were adults".

[10] In the present case, the sheriff tells us that the original position of the procurator fiscal depute was that he "submitted that the Act did not apply to the circumstances" of the case. He changed his position, when the sheriff pointed out why he had been considering applying the Act and why he had asked specially for argument. The sheriff says that he was therefore left only "with the fiscal moving for certification on the grounds that children had been among the lieges" and the defence solicitor's "counter-argument that the Act did not apply as no one named in the complaint was under 18".

[11] The sheriff says that in this case the acts complained of had been committed "in plain view of the lieges and these had included children" although he acknowledges that there was no evidence that any child had witnessed them. He goes on to say that the complainer here had exposed himself in a public street in the middle of the afternoon and during the school holidays, adding that in this case the Crown was able to show that children had in fact been present. He says that he "again felt that there was no justification for restricting the term 'the lieges' to members of the public who are 18 or over". After a number of further observations about the position if a depraved person is sexually aroused by children, and is discovered performing an indecent act beside a sleeping child, he says that he does not consider that the protection of the Act only becomes available if the child, sleeping or not, is specifically named in the libel, and he concludes by saying that "In my opinion it must be open to the court to draw a reasonable inference that 'those involved in the offence' are not all 18 or over but include the child as one of the lieges".

[12] Having regard to the statutory provisions, and in order that any statement in terms of section 5(2) can be made on the day of conviction, the plea of guilty and the narrative of facts should in our opinion be given on the same day, if there is any question that Part I of the Act may apply. Some of the procedural complications in this case flow from the fact that that did not happen. Moreover, the view taken by the sheriff on 26 May was taken before he knew the terms of the narrative. On 15 June, with neither side taking the view that the Act applied in the context of that narrative, the matter was plainly not properly argued, even though the procurator fiscal depute changed his position when faced with the sheriff's own original views. In the result, it does not seem to us that the real issues were ever focused, or distinguished from one another, when the sheriff dealt with the matter.

[13] We were not asked to analyse, and need not consider in detail, the general history and nature of the offence of "shameless indecency". Particularly where the offence takes the form of indecent exposure, quite complex issues can arise as to the effect, and intended effect, upon those to whom the accused exposes himself. Having regard to the inherent nature of the offence, we would content ourselves with saying that upon the basis of the present charge and narrative, we would wish to reserve our opinion as to whether the offence could be said to have been committed at all, if the only "lieges" present had been the two children in their buggies, unaware of what Mr. MacPherson was doing.

[14] But in relation to the 1997 Act, the question is not who was present (or whether they are named in the charge). The question is whether those present were "involved". In relation to shameless indecency it may be harder to decide who was involved, than it would be for the other offences listed in paragraph 2(1)(a), which inherently involve a specific victim or complainer. And it may be, as the sheriff suggests, that there are cases of shameless indecency where the actings and intentions of the accused so relate to a person who is, say, asleep that one would regard that person as "involved". But on the facts of this case, we see no basis for regarding these children as "involved".

[15] We do not find it necessary to consider the earlier case to which the sheriff refers. We would however say that in our opinion the present charge is not to be read as asserting any indecency in relation to persons not actually present. We would add that presence and involvement are not to be equated with one another, and that the sheriff does not seem to us to explain the basis upon which he apparently infers involvement from mere presence. Finally, we would express the firm opinion that if the Crown see the circumstances as having involved persons of under 18 years of age, so as to make Part I of the Act applicable, it is important in terms of fair notice that the formulation of the charge should demonstrate this, whether in general terms or (where practicable) by naming the persons in question.

[16] The Bill is passed and the order suspended simpliciter.