Scottish High Court of Justiciary Decisons

At advising, on 22 July 2003-

LORD JUSTICE-CLERK (GILL)-

[1] The accused has been prosecuted on complaint on four charges involving girls under the age of puberty. Charge 1 is in the following terms:

"[O]n a date between 15 October 2000 and 24 November 2000, the exact date at present to the complainer unknown, at [locus] you Allan Dominick did conduct yourself in a shamelessly indecent manner towards [MM], then aged 10 years and [LM], then aged 9 years, whereby you did discard material showing naked female and male persons in a place and in a manner to which the said children could not help but view same and induce them to view said material; "

or alternatively

on date above libelled in [locus] you Allan Dominick did conduct yourself in a disorderly manner and place [MM] and [LM] in a state of fear and alarm, persistently follow them, induce them to view material showing naked female and male persons and commit a breach of the peace.'

The three other charges relate to the second and other complainers and are in similar terms, the complainers in each case being girls aged 8 or 9 years. In each of them there is an alternative charge of breach of the peace, again in similar terms.

[2] The appellant has lodged a minute raising a devolution issue. He pleads that the charges of shameless indecency infringe his rights under Art 7 of the European Convention on Human Rights and Fundamental Freedoms ("the Convention'). If that plea is well founded, the Lord Advocate is barred by sec 52(2) of the Scotland Act 1998 from proceeding with those charges. The sheriff has referred the case to this court in terms of para 9 of sch 6 to the 1998 Act. She has put to us the following question:

"Is the charge of shameless indecency an all encompassing charge and the law on same unspecific, unclear and not properly defined and therefore too vague to comply with Article 7 of the European Convention on Human Rights?' In the course of a hearing on the reference it became apparent that the questions raised by the minute might require reconsideration of the decision of this court in Watt v Annan. The case has therefore been remitted to five judges.

[3] Watt v Annan is a decision on shameless indecency that has stood for 25 years. It has led to a number of controversial decisions. It has been criticised by the writers (eg Gordon, 3rd ed, paras 36.20-36.22; Ferguson, para 8.11; Maher, "

The Enforcement of Morals Continued'; and Gordon, "Shameless Indecency and Obscenity', and numerous commentaries in SCCR) and has been discussed without enthusiasm by this court (Paterson v Lees). This case has given us the opportunity to re-examine the foundations of the crime, such as they are.

[4] Since this case comes before the court on a devolution issue, senior counsel for the accused based his submissions on the jurisprudence of the Strasbourg Court on Art 7. The Crown does not dispute the relevant principles. Senior counsel submitted that the crime of shameless indecency is so uncertain in its scope that it fails to comply with the basic requirement of Art 7 that there should be reasonable certainty in the law. In the first edition of Macdonald it was recognised that indecent behaviour was an offence against public morals. In the two principal authorities on the subject in modern times the court misunderstood the nature of the crime. In McLaughlan v Boyd, the court approved an erroneous statement in Macdonald that "all shamelessly indecent conduct is criminal,' and on the basis of that statement extended the crime in Watt v Annan to conduct committed in private. That decision had extended the crime beyond any logical bounds. The crime should be redefined more narrowly. The acts libelled in this case could constitute a charge of breach of the peace, but ought not to be classified as shameless indecency. In any event, the complaint was irrelevant for lack of specification.

[5] The Advocate-depute did not support the ratio of Watt v Annan and accepted that the crime should be redefined. Watt v Annan went too far in extending the crime to private behaviour on the basis of its liability to deprave or corrupt. The quality of shamelessness consisted in the fact that the conduct offended or annoyed, or was likely to offend or annoy, the public; but it was not necessary for the completion of the crime that any member of the public should witness the conduct. The conduct could be shameless if only the participants were present, provided that it would give offence to members of the public if they were to know of it. Four categories of shameless indecency should remain within any redefinition of the crime; namely, (1) indecent conduct towards children under puberty not involving physical contact and therefore not amounting to lewd, indecent and libidinous practices (eg Paterson v Lees); (2) indecent conduct by a parent towards a child of any age (eg R v HM Advocate); (3) indecent conduct towards a person with whom the accused has a relationship of trust (eg HM Advocate v RK; Batty v HM Advocate); and (4) indecent exposure.

[6] The present complaint was relevant. The conduct was indecent and was directed towards girls under the age of puberty. If the libel lacked specification, that could be cured by amendment. Even if the alternative charges were disregarded, the facts set out in the primary charge could also constitute breach of the peace, as that crime is presently defined.

[7] There is no trace of the crime of shameless indecency, or of any crime of a similar name, in Mackenzie, Forbes (vol 2), Bayne or Maclaurin. The first mention of the expression "shameless' in relation to indecent conduct is to be found in George Smyth. Hume notes this case in a section entitled "Corruption of the morals of female pupils'. In that case the accused pled guilty to two charges. The first was a charge of indecent assault on three young girls in a common stair "by forcibly thrusting his hands up their petticoats'. The second was a charge of indecent exposure by "taking down his breeches and openly exposing his privy parts in a shameless manner in sight of the windows of dwellinghouses, and to the female servants there'. Alison refers to this case in passing, but only in relation to the first charge. He does not discuss the crime of indecent exposure (i, 225, 226). Bell notes the case of George Thomson or Walker where the accused pled guilty to certain charges of "assault, especially the assaulting of females, and the using lewd, indecent and libidinous practices and behaviour towards them; as also the feloniously and publicly exposing the private parts of the body in a shameless and indecent manner.'

[8] McKenzie v Whyte is the first case in which the court considered the definition of the crime of "indecent exposure of the person'. Neither counsel discussed this case; but in my opinion it is the key to a proper understanding of this branch of the law. In that case five youths who, it seems, intended to bathe in the South Esk, were convicted on a complaint that alleged that on the bank of the river they "did … wickedly and feloniously, expose their persons in an indecent and unbecoming manner, and did take off their clothes and expose themselves … in a state of nudity, to the annoyance of the lieges.' The word "shameless' was not used in the complaint. The significance of this case lies in the distinction made by the court between the crime of lewd, indecent and libidinous practices, which the court regarded as a crime against individual victims, and the crime of indecent exposure, which the court regarded as a crime against public morals (Lord Justice-Clerk Inglis, p 575; Lord Neaves, pp 572, 573). The court held that indecent exposure was not a crime per se (Lord Justice-Clerk Inglis, p 576; Lord Neaves, p 573) and that the libel was irrelevant because it failed to allege that anyone saw the conduct complained of (Lord Justice-Clerk Inglis, p 577). In dealing with the terms of the libel, the Lord Justice-Clerk said (pp 576, 577):

"Now, is that the offence against private persons which we know under the general name of lewd and libidinous practices? It cannot be that. On the other hand, is it that offence against public morals, which consists of a person exposing himself in a state of nudity, or partial nudity, in a public place, or where he can be seen by a multitude of people? There is nothing within the four corners of this complaint to justify us in supposing that the place which these persons selected for undressing themselves was a place where they might naturally expect to be seen by anybody whatever. It is said that they were in the neighbourhood of Brechin Castle; but it is not said that that house was inhabited, or that the place was in itself otherwise a place of public resort, or a place that could be seen from any place of public resort. It is not said that any persons were there and saw the accused; and I think, therefore, it clearly does not amount to that offence against public morals to which I have referred, which consists of the exposure of the person in a reckless and indecent way, so as to be seen by a number of people in some public place.' "

This analysis indicates that the crime of indecent exposure did not depend on technical distinctions between public and private places, but on the public quality of the conduct, namely exposure to the public at large even where the locus was technically a private place.

[9] In the first edition of Macdonald, published three years after McKenzie v Whyte, "indecent practices' were classified into the crime of lewd, indecent and libidinous practices towards children and the crime of "indecent behaviour,' which Macdonald identified with indecent exposure (pp 228-231). Macdonald's discussion of indecent behaviour begins as follows (pp 229, 230):

"Besides such offences as those above commented on where the gravamen consists in the corruption of individuals, indecent behaviour is punishable as an offence against public morals. All shamelessly indecent conduct is criminal. "Indecent Exposure" is not itself a point of dittay (McKenzie v Whyte, supra). Such offences are usually described in some such form as "feloniously and publicly exposing the private parts of the body in a shameless and indecent manner" (Geo. Smyth, supra; Geo. Thompson or Walker, supra). And the question whether the acts done amount to the offence charged or not depends on two elements - the impropriety of the act itself, and its effect on the mind of the person to whom the exposure is made.' "

In describing the two elements of indecent exposure Macdonald adopted almost verbatim a statement of Lord Neaves in McKenzie v Whyte (p 573).

[10] In the second and third editions, Macdonald's treatment of the subject is substantially the same, but with the omission of the first sentence of the passage that I have quoted. The discussion in Anderson is brief and inaccurate (p 96) and does not advance our understanding of the subject.

[11] In sch C to the Summary Jurisdiction (Scotland) Act 1908 ("the 1908 Act') the forms of complaint included the following style. "You did publicly expose your person in a shameless and indecent manner in presence of the lieges.' This form of charge indicates that, in line with McKenzie v Whyte, the essence of the crime was not that it was committed in a public place but that it was done publicly in the sense that the lieges were present. The use of the word "shameless' seems to have been taken from a style that was then in use in such cases. For example, in Carlin v Mallochthe appellant was charged with having "wilfully, indecently and in a shameless manner' exposed his person to a woman. The conviction in that case was set aside on the ground that the complaint was irrelevant for lack of specification.

[12] On the other hand, indecent exposure and other forms of indecency were also means by which the separate crime of lewd, indecent and libidinous practices could be committed against individual victims; for example, where the accused exposed himself to a child in private (cf Lockwood v Walker).

[13] In the fourth edition of Macdonald the text is confused by the insertion at the start of the section on indecent practices of the statement:

"It is a crime wilfully and indecently to expose the private parts in view of women.' This statement comes immediately before the discussion of lewd, indecent and libidinous conduct and on that account is misplaced. It is vouched by a footnote reference to Harper v Neilson; but that case concerned a statutory offence of indecent exposure under byelaws (Glasgow Police Act 1866, sec 149), the offence in question being one that could be committed by persons of either sex (cf Interpretation Act 1850, sec 4). Otherwise, this edition preserves the essence of Macdonald's own treatment of the subject.

[14] As the law stood before McLaughlan v Boyd, Macdonald's general statement had not been discussed judicially; but the distinction made in McKenzie v Whyte, and in my view observed by Macdonald, between lewd, indecent and libidinous practices and indecent behaviour in public had remained intact.

(iii) McLaughlan v Boyd

[15] In McLaughlan v Boyd the appellant was convicted in the police court of two charges of lewd, indecent and libidinous practices, both of which alleged that he had seized the complainer's hand and placed it on his own private parts, and of six charges of indecent assault, all of which alleged that he had placed his own hand on the complainer's private parts.

[16] The main question in the appeal was whether the common law crime of lewd, indecent and libidinous practices could be committed against a person who was over the age of puberty (McLaughlan v Boyd, Lord Justice-General Clyde, p 22). In holding that the crime could be committed against such a person, the High Court approved Macdonald's general statement about shameless indecency, and in doing so introduced a confusion of ideas that has affected the case law ever since.

[17] In the first sentence of his opinion, Lord Justice-General Clyde referred to the appellant as having "

given himself up to conduct with other men of a grossly and shamelessly indecent kind' (p 22). The Lord Justice-General regarded the conduct libelled in the charges of lewd, indecent and libidinous practices as an example of "indecency or lewdness'. He then took up a submission of counsel for the burgh prosecutor and said (pp 22, 23):

"It would be a mistake to imagine that the criminal common law of Scotland countenances any precise and exact categorisation of the forms of conduct which amount to crime. It has been pointed out many times in this Court that such is not the nature or quality of the criminal law of Scotland. I need only refer to the well-known passage in the opening of Baron Hume's institutional work (Hume on Crimes (3rd ed.) ch. i), in which the broad definition of a crime - a doleful or wilful offence against society in the matter of "violence, dishonesty, falsehood, indecency, irreligion" is laid down. In my opinion the statement in Macdonald's Criminal Law (4th ed., p. 221) that "all shamelessly indecent conduct is criminal," is sound and correctly expresses the law of Scotland. No doubt there may be in particular cases circumstances of aggravation, but I am not prepared to rule out of the category of crime any shamelessly indecent conduct, and I am not prepared to infer, from the circumstances that sec 11 of the Act of 1885 affirmed the proposition that shamelessly indecent conduct by one male adult in relation to another was criminal, that such conduct was not, or could not have been, the competent subject of prosecution in Scotland before.'

This statement implied a potentially limitless extension of the criminal law in the sphere of sexual activity (cf Gordon, "Crimes without Laws?', pp 220, 221). Lord Blackburn and Lord Morison concurred in the opinion of the Lord Justice-General. Lord Morison made the surprising statement that the charges before the court were charges of shamelessly indecent conduct. He said that it was quite immaterial that the words "lewd' and "libidinous' were used, because the words "shamelessly indecent' would have been just as good (McLaughlan v Boyd, pp 23, 24).

[18] Since that appeal concerned the well-recognised crimes of lewd, indecent and libidinous practices and of indecent assault, the Lord Justice-General's approval of Macdonald's statement was obiter. It was also, in my opinion, misguided. The Lord Justice-General wrested the statement from its context as a basis for a general proposition that was insupportable. It is surprising that the Lord Justice-General should have pronounced such an obiter dictum in an appeal in which the Crown was not represented. The result of that dictum, and of the dicta of Lord Morison, was to obscure the distinction made in McKenzie v Whyte. Neither counsel in that case drew McKenzie v Whyte to the attention of the court, which may account for the court's misunderstanding.

(iv) From McLaughlan v Boyd to Watt v Annan

[19] In the fifth edition of Macdonald, by James Walker QC (later Lord Walker) and DJ Stevenson, the discussion begins as follows (p 149):

"It is a crime wilfully and indecently to expose the male private parts in view of women in public places (Harper v Neilson, supra). Lewd, indecent, and libidinous practices towards children, tending to corrupt the morals of the young, are criminal, although there be no assault (Acts, 1567, c.14 and c. 15. - Hume i. 446-449. - Alison i. 562-563). Wilful and indecent exposure of the private parts before young girls or boys is an instance of this offence. The essence of indecent exposure is, in the case of children, that it is calculated to corrupt their morals; and, in the case of adults, that it is an offence against public decency (McKenzie v Whyte, supra). Other instances of lewd practices are the indecent handling of children, and the inducing children to commit indecencies, and seducing and debauching them to such practices (Malcolm McLean, 1838 Bell's Notes 86). "

Exposure to, and practices upon, females over 12 years of age, in private places and where the element of assault is absent, are not criminal (Robert Philip ((1855) 2 Irv 243) except under the Criminal Law Amendment Act 1922.'

The references in the second footnote in this quotation relate to incest and are misplaced. The distinction drawn in this passage between indecent exposure as a crime against children and indecent exposure as an offence against public decency accurately reflects the distinction in McKenzie v Whyte which the editor cites. The last proposition, too, is accurate. The authority cited for it was a case of lewd, indecent and libidinous practices towards a girl under the age of puberty and of indecent assault against a girl of "twelve years of age or thereby.'

[20] From 1934 until 1978 there was no reported case in which shamelessly indecent conduct was charged eo nomine. In Pt 2 of the Second Schedule to the Summary Jurisdiction (Scotland) Act 1954 ("the 1954 Act') the specimen complaint for the crime of indecent exposure remained in the same terms as that in the 1908 Act. On the eve of Watt v Annan, the practice was to charge indecent exposure expressly as such, but with a reference to shamelessness in accordance with the statutory style; or as a breach of the peace; or as a statutory offence under the Burgh Police (Scotland) Act 1892 (sec 380) or local byelaws (eg Harper v Neilson). So far as the available sources disclose, indecency in any form other than indecent exposure was charged in only one case, namely James Millar Robertson. That was an unreported case in which the accused pled guilty to a charge that he conducted himself in a shamelessly indecent manner by having carnal knowledge of his wife's daughter in the presence of his wife and against the will of both of them. Since the relevancy of the charge was not challenged, the case is of no help to us.

[21] In Watt v Annan the charge, according to the law report (p 85), was that the appellant conducted himself "in a shamelessly indecent manner and exhibited or caused to be exhibited to a number of persons a film of an obscene or indecent nature which was liable to create depraved, inordinate and lustful desires in those watching it and to corrupt the morals of the lieges.' The complaint is not quoted in full, but the Session Papers show that it specified several obscene activities that were shown on the film.

[22] This is the first reported case in which the charge was expressly one of shamelessly indecent conduct. It was not charged as a public order offence. Those parts of the libel which referred to the effects of the film upon the audience and the lieges raised considerations that had not been mentioned before in the context of offences of indecency. They were taken from the style of the common law charge of publishing an obscene work, a crime last heard of in 1843 (cf Henry Robinson). Lord Stott later described them as "archaic and faintly ludicrous' (Dean v John Menzies (Holdings) Ltd, p 37).

[23] The audience for the film consisted of about 25 adult males who were subscribing members of a social club. They met in the lounge bar of the appellant's hotel. Although there was no finding in fact on the point, the court was willing to infer from the printed rules of the club that an applicant could become a subscribing member for the purpose of access to the show on payment of 10 pence. The appellant first showed a film of a club outing on a Clyde steamer. Then he locked the door of the bar before showing the film complained of. The audience, it seems, knew what they were about to see. The showing of the film was interrupted by the arrival of the police. The sheriff found that the film as a whole and the episodes specifically libelled were obscene, indecent and shameless, and were "of a nature and degree liable to deprave and corrupt as libelled.' He made no specific finding in fact as to the creation of depraved, inordinate or lustful desires; but he found in fact that, upon arrival at the locked door during the showing of the film, the police officers heard laughter inside. On a commonsense view of the case, the indecency was committed by those whose acts were portrayed on the film. The audience were willing viewers of the film and were not shocked by its content.

[24] Counsel for the appellant in that case submitted that the complaint disclosed no criminal offence according to the common law of Scotland; that indecency in private, not falling within the description of lewd and libidinous practices, was not a crime; and that Macdonald's statement was not intended to apply to conduct in private where no issue of lewd or libidinous practices arose and where all parties were adult and consenting (pp 86, 87). In view of McKenzie v Whyte, these submissions could scarcely be faulted.

[25] The Advocate-depute submitted that the necessary qualification of shamelessness implied that the conduct was directed intentionally towards another or others, and in the context that the conduct itself should tend or be liable or calculated to deprave or corrupt the morals of the person or persons towards whom it was directed (p 86). This submission was unvouched.

[26] Two questions were stated by the sheriff, namely whether the charge was relevant and whether, on the findings in fact, the sheriff was entitled to convict. On the first question, Lord Cameron, with whose opinion Lord Justice-General Emslie and Lord Johnston concurred, said (p 88):

"The statement that "all shamelessly indecent conduct is criminal" makes its first appearance in the first edition of Macdonald's Criminal Law and is repeated in all subsequent editions without comment or criticism in any decided case. It was approved by Lord Clyde in McLaughlan v Boyd … when he declared it to be sound and correctly expressing the law of Scotland. It is true that this observation was obiter but it was concurred in by the other members of the court and has not been since subjected to criticism or doubt.' "

It would perhaps be more accurate to say that in the 111 years since Macdonald's statement had been made, the High Court had not had to consider the relevancy of a charge of "shamelessly indecent conduct'; that the idea that Macdonald's statement expressed a general principle relating to all indecency, wherever committed and whatever the circumstances, had never been countenanced in any statement of the law before McLaughlan v Boyd; and that Macdonald's statement, and the dicta in McLaughlan v Boyd, had been strongly criticised in the first and second editions of Gordon (1st ed, pp 31-32, 850-852; 2nd ed, paras 1.32, 36.19-36.21). Lord Cameron analysed the crime as follows (pp 88-90):

"It is clear however that, as the Crown maintained, it is not the indecency of the conduct itself which makes it criminal but it is the quality of "shamelessness," and the question is what is the content of this qualification? It was accepted, and rightly so, in the submission for the Crown that the conduct to be criminal, in such circumstances as the facts of this case disclose, 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 would be impracticable as well as undesirable to attempt to define precisely the limits and ambit of this particular offence, far less to decide that the nature of the premises or place in which the conduct charged has occurred should alone be decisive in transforming conduct which would otherwise be proper subject of prosecution into conduct which may do no more than offend the canons of personal propriety or standards of contemporary morals. If it were considered desirable or necessary that this was a chapter of the criminal law in which precise boundaries or limits were to be set then the task is one which is more appropriate for the hand of the legislator … Neither the publicity nor the privacy of the locus of the conduct charged necessarily affects far less determines the criminal quality of indecent conduct libelled as shameless. That this is so can be readily inferred from the context in which this statement of the law appears, particularly in Macdonald's first edition and in those subsequent editions which were revised by the Lord Justice Clerk himself. 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 … 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 - see McLaughlan v Boyd … The criminal character of the act of indecency must therefore depend on proof of the necessary criminal intent as well as proof of the nature of the conduct itself and of the circumstances in which it takes place. Conduct that may be legitimate and innocent in the laboratory of the anthropologist may well be shamelessly indecent if carried on or exhibited in other places or circumstances, and whether these can be characterised as private or public may be no matter. In any event, it may well be asked what should be the criterion of "publicity" as opposed to "privacy" which is to determine the critical issue of deciding that conduct which might otherwise be regarded only as in conflict with accepted morals becomes in breach of the criminal law. To this question the submissions for the appellant provide no answer and the obscene publication cases no guide.' "

[27] In my opinion, this reasoning is unsatisfactory. It takes for granted an irrelevant submission for the Crown about corruption and depravity for which there was no foundation in authority. It proceeds, in my view, on a misunderstanding of the "public' element in the crime of indecency identified in McKenzie v Whyte, and of the treatment of "indecent practices' in the first three editions of Macdonald. On the second question, Lord Cameron said (pp 90, 91):

"In the light of these undisputed facts it appears to me idle to maintain that this was a performance in circumstances which were inconsistent with affront to public decency or morals. Even if it were to argued that a mere domestic and gratuitous entertainment of family and friends by a display of such a film would not attract penal consequences the facts found in the present case bear no resemblance to any such situation. So far as the findings in fact disclose there was little, if any, control over indiscriminate access, in premises to which the public had a right of entry, to an exhibition the character of which, it is not in dispute, was accurately described in the complaint and in the sheriff's findings in fact. The appellant's conduct was intentionally directed towards whoever could avail himself of the opportunity to be present and it was conduct which the sheriff, in my opinion, was entitled to find was calculated or liable to deprave or to corrupt in light of the admitted nature of the film.' "

This reasoning follows from the conclusion on the first question and is of course incompatible with McKenzie v Whyte. The last sentence in this quotation implies that the audience were, in a sense, victims of the appellant's conduct, an interpretation that is difficult to reconcile with the findings in fact.

[28] The decision in Watt v Annanwas a direct consequence of McLaughlan v Boyd. The excessive statement of Lord Justice-General Clyde in McLaughlan v Boyd set no limit to the ambit of shameless indecency. The effect of that statement was to enable the court, by characterising any form of conduct as shamelessly indecent, to exercise the declaratory power. That, in my opinion, is what happened in Watt v Annan. The result was the creation of a crime that had no basis in principle and was unconstrained by any clear or logical boundaries.

[29] As a result of Watt v Annan,the ingenuity of the Crown extended the crime in three directions.

[30] The references in Watt v Annan (pp 88, 89) to the tendency to corrupt or deprave led to a line of cases in which charges of shameless indecency were brought against sellers of allegedly obscene publications. In Robertson v Smith a charge of shameless indecency was held to be relevant which libelled that the accused conducted himself "in a shamelessly indecent manner, that he did sell, expose for sale and have for sale [indecent and obscene books, magazines, films and a pack of playing cards] which books, magazines, films and playing cards were likely to deprave and corrupt the morals of the lieges and to create in their minds inordinate and lustful desires.' Lord Cameron, with whom Lord Justice-General Emslie and Lord Avonside concurred, considered that the charge was relevant. He saw no distinction in kind between indecent exposure of the person and exposure for sale of obscene publications (p 4).

[31] Similar charges were made in, among other cases, Dean v John Menzies (Holdings) Ltd, in which it was held to be incompetent to libel such a charge against a body corporate; Tudhope v Barlow, where the sheriff reflected on the meaning of inordinate and lustful desires (p 98) and on the pernicious effect of the publications in that case on the moral habits of the public; and Ingram v Macari, where the decision was based on the concepts of the law of obscenity.

[32] The decision in Watt v Annanthat shameless indecency need not involve a public element (pp 89, 90) led to a second line of cases in which the Crown charged shameless indecency in respect of consensual sexual acts committed in private in circumstances which the Crown alleged to be offensive by reason of the relationship between the participants.

[33] In R v HM Advocate the appellant was charged with shameless indecency consisting of sexual conduct not involving intercourse, and committed in private, with his 16-year-old daughter. The sheriff held that the appellant's behaviour had been "incestuous in quality' and that a father who so conducted himself towards his lawful daughter would inescapably merit description as being lost to any sense of shame or as using his judgment and discretion as to his conduct in an indecent and shameless fashion (p 257). The appeal court held that the charge was relevant and that the sheriff was right in directing the jury that if the facts alleged were proved, they must convict. The private nature of the conduct and the age and consent of the daughter were irrelevant considerations. In that case, both counsel for the appellant and the court accepted a number of "unassailable propositions' including the propositions that the crime of shameless indecency might be committed in private; that the person to whom the conduct was directed might participate in, or consent to, or offer no objection to, the conduct; and that it was not the indecency of the conduct that made it criminal, but the quality of shamelessness that arose from the father and daughter relationship (p 259). In giving the opinion of the court, Lord Justice-General Emslie said (p 260):

"The reasons for the sheriff's decision clearly appear and we observe that he seems to be saying what has been said by jurists since the time of Hume, namely that a sexual relationship between a parent and child is in the law of Scotland regarded as behaviour which is repugnant to society.' This statement prompted a line of prosecutions based on the proposition that shameless indecency could be constituted by any sexual relationship other than that of parent and child which, in the view of the court, was repugnant to society (cf Ferguson, para 8.12).

[34] This approach can be seen in HM Advocate v RK where Lord MacLean repelled a plea to the relevancy of a charge of shameless indecency which alleged that the accused had sexual intercourse with a girl who had been his foster daughter from the age of eight years, on various occasions when she was aged between 16 and 18-and-a-half years. Lord MacLean held that in the circumstances of the case, society would regard such conduct as repugnant until the complainer reached the age of 18. He considered that the shameless character of the conduct continued beyond that age so long as she continued to live in family with the accused and the general family relationship could be seen to be continuing between them, these last considerations being questions of fact for the jury (p 501).

[35] Batty v HM Advocate is the most confused of these cases. In that case a house parent in a residential school was charged with lewd, indecent and libidinous practices towards five girls in his care, all of them over the age of puberty, and with shameless indecency towards one of them consisting of his having had intercourse with her. At the end of the Crown case the procurator fiscal amended the first charge by converting it into five separate charges of lewd, indecent and libidinous practices, one in relation to each of the complainers, and withdrew the charge of shameless indecency. The sheriff directed the jury that the crime of lewd, indecent and libidinous practices was a type of shameless indecency (p 527D-E) and that the quality of shamelessness in that case arose from the relationship of house parent and pupil (p 527E-F).

[36] According to the reports in both Justiciary Cases and Scottish Criminal Case Reports, the appellant was convicted of shameless indecency (cf Batty v HM Advocate). That is not the case. The books of adjournal record that the jury returned a verdict of guilty on each of the five charges of lewd, indecent and libidinous practices, subject to certain unimportant deletions. The confusion on the point probably arises from the fact that in his charge the sheriff referred indiscriminately to lewd, indecent and libidinous practices and to shameless indecency, in line with the dicta of Lord Morison (McLaughlan v Boyd, p 23) that I have quoted.

[37] At the appeal, counsel for the appellant (pp 527G-528C) and the Advocate-depute (p 528D) accepted that the facts libelled in the charges of lewd, indecent and libidinous practices could also constitute shameless indecency. The court accepted that proposition (pp 529D-530B) on the basis of Lord Morison's dicta and held that the quality of shamelessness lay in the relationship of trust (p 530B-C). The court also accepted the principle that where the conduct complained of constituted a statutory offence for which the Crown considered the penalty to be inadequate, the Crown could proceed at common law (p 529D-E).

[38] In HM Advocate v Roose the trial judge, Lord Marnoch, checked this line of development. The accused was charged with shameless indecency in having had intercourse with a girl between the ages of 13 and 14 years who was 20 years younger than he. The Crown brought this charge because a prosecution under the Criminal Law (Consolidation) (Scotland) Act 1995 was out of time. The Crown argued that the quality of shamelessness lay in the difference in age between the complainer and the accused, which could in itself create a relationship of trust similar to that considered in Batty. Lord Marnoch held that the charge was irrelevant, the age difference being insufficient per se to create such a relationship.

(iii) Lewd conduct cases

[39] In the third line of cases, the Crown charged shameless indecency in cases involving the showing of obscene videos to young people in private. There are two reported examples. In Carmichael v Ashrif, a sheriff court case reported on a procedural point, the complaint alleged that the accused conducted himself in a "

shameless and indecent manner' towards two schoolgirls, aged 14 and 15, by causing them to watch a pornographic video recording which was "liable to create depraved, inordinate and lustful desires in those watching said recording and to corrupt the morals of the lieges.' In Paterson v Lees the accused was charged with having conducted himself in a shamelessly indecent manner towards a boy aged 11 and a girl aged 9 by showing them a pornographic video. In the course of the trial, the charge was amended to allege only that the accused permitted the children to continue to see the video after he became aware of its nature. In its amended form the charge was held to be irrelevant.

[40] Despite these extensions to the crime, the form of summary complaint set out in the 1908 and 1954 Acts was continued unaltered in sch 5 to the Criminal Procedure (Scotland) Act 1995 and no specimen charge of shameless indecency was added to the schedule.

[41] In Paterson v Lees the court expressed its dissatisfaction with Watt v Annan. It was concerned about the uncertain limits of the crime (Lord Justice-General Rodger, p 233F-G; Lord Sutherland, p 235D-E; Lord Coulsfield, pp 237, 238) and about the idea that the conduct libelled should tend to corrupt or deprave (Lord Sutherland, p 235F).

[42] The court expressed reservations about the relevancy of the charge in Cartwright v HM Advocate (p 699B-E). That was a decision on an appeal against sentence by a teacher who had pled guilty to a charge of shameless indecency which alleged that he had intercourse with a pupil aged between 13 and 16 years. On instructions, his counsel did not take a plea to the relevancy of the charge and the point was not pursued.

[43] I have given this extended survey of the law in order to demonstrate how two decisions of this court have created a crime that rests on an unsound theory, has an uncertain ambit of liability and lays open to prosecution some forms of private conduct the legality of which should be a question for the legislature (Paterson v Lees, Lord Justice-General Rodger, p 234D). It is time that this court put the matter right.

[44] Macdonald's much-quoted statement has been criticised by the writers (Gordon, 3rd ed, para 36.20; Gane, pp 137, 138; Gane and Stoddart, paras 9.38, 9.40), who see in it the origin of the law's present problems; but I would not lay the blame at Macdonald's door. If read in isolation, Macdonald's statement seems to express a principle that is too wide and has no basis in authority; but I think that that is an unreasonable reading of his words. Macdonald had a clear understanding of the ratio of McKenzie v Whyte. That decision, and the statement of Lord Neaves which Macdonald adopted, together with the footnote references to George Smythand George Thompson or Walker, provide the context in which this general statement was made. When read in that context, the statement relates only to indecent behaviour committed in public, of which the typical case is indecent exposure. It is the public element of the indecency, I think, that lies behind Macdonald's use of the term "shameless' (cf Paterson v Lees, Lord Coulsfield, p 237C). On that view, Macdonald's statement can be readily understood. But whatever view one takes on this point hardly matters now. What matters is that Macdonald's statement does not provide a sound foundation for the modern conception of the crime.

[45] The soundness of the present law on shameless indecency is not a mere academic question. There are important practical considerations. Since shameless indecency is a sexual offence within sch 1 to the Sex Offenders Act 1997 (para 2(1)(a)(vii)), every person convicted of it becomes a sex offender and is subject to the notification requirements of secs 1 and 2 of that Act.

[46] In my opinion, the obiter dicta in McLaughlan v Boyd, on which the court relied in Watt v Annan, were unsound for the reasons that I have given, and should be disapproved. Watt v Annan was wrongly decided and should be over-ruled, together with those cases in which the ratio of it has been followed.

[47] If I am right in this view, the next question is what the correct statement of the law should be. Senior counsel for the accused invited us to redefine the crime of shameless indecency; but he declined our invitation to suggest a suitable redefinition, being confident, I suppose, that we were equal to the task. The Advocate-depute accepted that the nomen juris of shameless indecency should remain, but she proposed that it should be redefined to limit its scope to certain specified categories of conduct.

[48] In my opinion, redefinition is not the answer to the problems highlighted in this case. The appropriate starting point is the original and straightforward conception of the offences of indecency set out in McKenzie v Whyte. That decision classifies lewd, indecent and libidinous practices as a crime against an individual victim, and recognises that such practices are criminal whether committed in public or in private. It classifies indecent conduct, as such, as a crime against public morals and establishes that such conduct is not criminal where it causes no public offence. In my opinion, that distinction remains valid.

[49] In the modern law, where indecent conduct is directed against a specific victim who is within the class of persons whom the law protects, the crime is that of lewd, indecent and libidinous practices. It may be committed by indecent physical contact with the victim, but it need not. It may be committed by the taking of indecent photographs of the victim (eg HM Advocate v Millbank); or by indecent exposure to the victim (Lockwood v Walker); or by the showing of indecent photographs or videos to the victim; or by other forms of indecent conduct carried out in the presence of the victim. It may be committed, in my opinion, by means of a lewd conversation with the victim, whether face to face or by a telephone call or through an internet chat-room. In each case, the essence of the offence is the tendency of the conduct to corrupt the innocence of the complainer. If I am right in this view, several cases that have been prosecuted as shameless indecency should properly have been prosecuted as cases of lewd, indecent and libidinous practices.

[50] On the other hand, where indecent conduct involves no individual victim, it is criminal only where it affronts public sensibility. Although this crime has no specific victim, it may be appropriate in some cases that the libel should specify the persons who witnessed the conduct complained of (eg Lord Advocate, Petr); but that is a matter of fair notice only. In other cases such specification may be unnecessary and inappropriate (eg Lockhart v Stephen).

[51] In my opinion, this crime, clearly established in Scots law before McLaughlan v Boyd, should in modern practice be described as "public indecency'. It has a similar place in the law of Scotland to that of the common law offence of public indecency in the law of South Africa. Public indecency was declared to be a crime by the Supreme Court of the Cape Colony in R v Marais on the analogy of the crimina extraordinariadescribed by Voet (47.11.1ff.; cf D. 47.11; Mars; Snyman, pp 365, 366) and by reference to the English common law on the subject (R v Marais, De Villiers CJ, p 370). In its original conception, the South African crime of public indecency was considered to be criminal by reason of the tendency of the conduct to deprave the morals of others (R v Marais), but it has been recognised in the modern case law that it is sufficient for liability if the conduct outrages the public's sense of decency (R v B and C;Milton, vol 2, pp 271, 272, 276-278). In S v F, for example, an indecent action committed by a performer in a cabaret was found by the magistrate to have been designed to incite lascivious thoughts and arouse sexual desires, but the decision of the appellate court was concerned almost entirely with the question whether the audience were shocked.

[52] In my view, if such conduct is seen as a public order offence, questions about the depraving or corrupting effects of the conduct complained of are at most of indirect relevance. As in the English offence of outraging public decency (Knuller (Publishing Printing and Promotions) Ltd v DPP, Lord Simon of Glaisdale, p 493), it is sufficient for liability that, on an objective assessment, the conduct complained of should cause public offence.

[53] In the law of Scotland, in my opinion, the actus reus of the crime has two elements, namely the act itself and the effect of it on the minds of the public. As to the indecent act, the paradigm case is that of indecent exposure (1995 Act, sch 5; Lord Advocate, Petr, Lord Justice-General Rodger, p 405A-C; Usai v Russell, Lord McCluskey, p 62B-C); but the crime may extend to any other form of indecency, for example sexual intercourse in public view (Paterson v Lees, Lord Sutherland, p 235F-G;R v B and C), or the making of indecent actions or gestures in a stage show (eg S v F). Whether or not such indecency is committed for sexual gratification is, in my view, irrelevant to liability, being a matter of motive, but may, on conviction, be a relevant factor in the court's disposal.

[54] Whether the crime extends, like the South African offence of public indecency (Burchell and Milton, p 615) and the English offence of outraging public decency (R v Gibson), to conduct that is not of a sexual nature is a question that can be decided if and when it arises.

[55] As to the public element of the crime, the test, in my view, is not whether the conduct occurs in a public place in any technical sense. Conduct falling within the definition could take place on a private occasion if it occurred in the presence of unwilling witnesses or if it occurred on private premises but was nonetheless visible to the public (eg Usai v Russell; R v Thallman; R v B; Manderson v R, p 1142).

[56] I do not accept the submission of the Advocate-depute that indecent conduct committed in private can be criminal merely because the conduct would cause offence to certain people if they were to hear about it. In my view, the crime does not extend to consensual sexual conduct committed in private; nor to the private showing of indecent films and videos; nor to the selling of indecent publications. Nor does it extend to conduct witnessed only by persons who wish to see it - for example, performances by strippers (eg Lockhart v Stephen) or plays with scenes of nudity (eg Cullen v Mecklenberg) and the like - except perhaps where the conduct is such as to offend even members of a consenting audience. On this view, indecent exposure such as that considered in Geddes v Dickson, which was found to have offended some of those present, would continue to be criminal.

[57] On the view that I have taken in this case, shamelessness is not a definitional element in the crime. It is part of the rhetoric used in the early forms of the charge of indecent exposure and later given statutory expression in the 1908, 1954 and 1995 Acts. In my view, it is superfluous and should not be used in the modern style of the charge.

[58] If it is analysed as I propose, public indecency is an offence that fulfils an appropriate role in the maintenance of public order. Whether a particular act is indecent will depend on the circumstances of the case judged by social standards that will change from age to age (cf McGowan v Langmuir,Lord Sands, pp 13, 14). These will be the standards that would be applied by the average citizen in contemporary society. That is the idea that underlies the test of the "community standard of tolerance' that has been applied in some of the Canadian cases on the subject (eg R v Jacob; R v Tremblay) and the test of the "recognised contemporary standards of common propriety' that has been applied in some of the Australian cases (eg Phillips v Police). How such standards are applied in an individual case will depend on the time, place and circumstances of the conduct complained of (R v Dunn; cp S v F, p 8A; S v K, p 70D-G). On this interpretation of indecency, there should be no need to libel considerations such as the excitation of depraved, inordinate or lustful desires in the lieges.

[59] Although this approach discredits the theory underlying numerous cases that I have described, it does not follow that the conduct to which those cases relate would in every case be decriminalised. Such conduct would be taken out of a category to which it ought not to belong; but in almost every case the conduct would remain criminal. For the reasons that I have given, many cases involving indecent conduct towards individual victims are properly to be classified as cases of lewd, indecent and libidinous conduct. The showing of indecent films and the exposure for sale of indecent publications are contraventions of the Civic Government (Scotland) Act 1982 (sec 51). Some, but not all, of the sexual relationship cases will involve statutory offences (Criminal Law (Consolidation) (Scotland) Act 1995, secs 2, 3, 5, 6; Sexual Offences (Amendment) Act 2002, secs 3, 4). To the extent that consensual sexual conduct in private does not constitute an existing offence, its legality is in my view a matter for the legislature.

[60] One significant consequence of the view that I propose would be that in cases where a statutory prosecution was time-barred (HM Advocate v Roose), or where the Crown considered that the statutory penalty was inadequate (Batty v HM Advocate), the Crown would no longer have the option of bringing a common law charge of shameless indecency. That is not an unreasonable consequence. Legal principles should not be distorted for the purpose of circumventing statutory time-limits or penalties.

[61] Since this is a reference on a devolution minute, senior counsel for the accused presented his submissions on the basis of human rights jurisprudence and felt that he could not take any point of relevancy. The court is not constrained in this way. It is obvious that the real issue in this case is one of relevancy. These unsyntactical charges do not allege that the accused acted in a way that affronted public decency. They are irrelevant on that account. The allegation is that the accused directed certain allegedly indecent conduct towards named individual children. It is my impression that if conduct of the kind alleged is criminal, the crime committed is that of lewd, indecent and libidinous practices; but I express no decided view on that point, because the charges are deficient in specification. They fail to specify what the "material' in question was; they fail to specify why the nakedness of the persons that the material portrayed was indecent; and they fail to specify how or why the "discarding' of the material referred to constituted an inducement to the complainers to view it.

[62] I propose that we decline to answer the question remitted to us. The question is badly framed and it relates to a devolution point that is unnecessary, in my view, for the proper resolution of this case. I think that it will be sufficient for us to say that the charges of shameless indecency in this complaint are irrelevant. If your Ladyship and your Lordships are of the same mind, I propose that we should remit the case to the sheriff to proceed as accords.

LORD MARNOCH- [63] I respectfully agree with the opinion delivered by your Lordship in the chair and have nothing to add.

LORD MACFADYEN- [64] I wholly agree with the opinion which has been expressed by your Lordship in the Chair, and have nothing to add.

LADY COSGROVE- [65] I entirely agree with the opinion of your Lordship in the chair and I have nothing useful to add.

LORD SUTHERLAND- [66] I entirely agree with the opinion of your Lordship in the chair and I have nothing useful to add.