Scottish High Court of Justiciary Decisons

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Cite as: [2003] ScotHC 42

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Maclean v. Procurator Fiscal, Inverness [2003] ScotHC 42 (22 July 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Marnoch

Lord Macfadyen

Lady Cosgrove

Lord Sutherland

XJ148/03

OPINION OF THE COURT

delivered by

THE LORD JUSTICE CLERK

APPEAL

GILLIAN MacLEAN

Appellant;

against

PROCURATOR FISCAL, INVERNESS

Respondent:

_______

Appellant: Shead; Balfour & Manson

Respondent: Johnston, AD; Crown Agent

22 July 2003

Introduction
[1] The appellant has been charged at the instance of the respondent on the following complaint:

"on various occasions between 19 November 1998 and 5 January 1999, both dates inclusive, at [locus 1], [locus 2], [locus 3], [locus 4] and [locus 5], and while employed as a teacher by [employers] teaching English at [school A] and [school B] you Gillian Maclean did conduct yourself in a shamelessly (sic) and indecent manner and did engage in an inappropriate relationship with a former pupil of yours and while still a pupil at [school A], namely [name] (date of birth 8 July 1984) ... and did kiss him on the mouth, touch him on the upper part of his body, induce him to touch you on the upper part of your body and on your breasts, propose that he and you should go to a hotel room together for the purposes of further conduct of a sexual nature and engage in an exchange of telephone calls and correspondence with him of an inappropriate and indecent nature."

The appellant presented a devolution minute in terms of Schedule 6 to the Scotland Act 1998 on the grounds that the prosecution contravened her rights under articles 6, 7 and 8 of the European Convention on Human Rights. By decision dated 4 May 2001 the sheriff at Inverness sustained the minute under article 6, but repelled it under articles 7 and 8. He therefore dismissed the complaint. With leave of the sheriff, the Crown appealed against the decision on article 6. On 22 March 2002 this court sustained the appeal. The present appellant now appeals with leave of the sheriff in relation to his decision on article 7.

[2] This case was heard along with the reference in the case of PF Dunoon v Dominick (22 July 2003).

Submissions for the appellant
[3] Counsel for the appellant adopted the submissions made on behalf of the accused in PF Dunoon v Dominick (supra). He submitted that the present complaint did not libel a crime. The Crown contention appeared to be that the shamelessly indecent character of the conduct libelled lay in the appellant's engaging in an inappropriate relationship with someone who had been her pupil but who was over the age of puberty. The Crown approach proceeded on a misunderstanding of the significance of the relationship. The teacher and pupil relationship did not of itself make a sexual relationship indecent. That relationship was merely an aggravation in cases where the teacher committed the crime of lewd, indecent and libidinous practices against a pupil who was under the age of puberty (David Brown, (1844) 2 Broun 261; Macdonald, Criminal Law of Scotland, 1st ed., p. 230). Since the complainer was over the age of puberty, the complaint did not libel a crime. The relationship of teacher and pupil was therefore irrelevant. The conduct libelled would now be criminal in terms of section 3 of the Sexual Offences (Amendment) Act 2000 (the 2000 Act) by reason of the fact that a teacher is in a position of trust, as defined in section 4(5) of that Act, in relation to a pupil. That legislation implied that such activity was not criminal at common law. The Crown was seeking not merely to criminalise sexual conduct but to criminalise a particular type of relationship.

Submission for the Crown
[4] The advocate depute submitted that this case fell within the proper scope of shameless indecency because the behaviour was indecent per se and was directed against the complainer by a person who was in a position of both trust and authority. It therefore fell within one of the four categories of the crime for which the Crown had contended in PF Dunoon v Dominick (supra). The Crown accepted that the allegations in this complaint came within sections 3 and 4(5) of the 2000 Act; but this case pre-dated that Act.

Decision
[5] We refer to our decision in the case of PF Dunoon v Dominick (supra) in which we have held that the crime of shameless indecency as it now exists has no satisfactory basis in the law of Scotland and have defined the scope of the crime of public indecency. The relevancy of this charge stands or falls with Watt v Annan (1978 JC 84) and the series of "relationship" cases in which it has been followed. We have discussed those cases in our decision in PF Dunoon v Dominick and have decided that they should be over-ruled. For the reasons that we have given in that decision, we consider that the charge of shameless indecency in this case is irrelevant. Moreover, the conduct alleged predates sections 3 and 4(5) of the 2000 Act and is not made criminal by any other enactment.

[6] For these reasons, we think that it is unnecessary for us to consider the issue raised under article 7. Instead, we shall return the case to the sheriff without having dealt with that issue, on the assumption that the Lord Advocate will make a decision on this prosecution in accordance with the views that we have expressed.