Scottish High Court of Justiciary Decisons

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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Moynagh v. Procurator Fiscal [2003] ScotHC 55 (31 October 2003)
URL: http://www.bailii.org/scot/cases/ScotHC/2003/55.html
Cite as: 2003 SCCR 765, 2003 SLT 1377, [2003] ScotHC 55, 2003 GWD 36-1001

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JISCBAILII_CASE_CRIME_SCOTLAND Moynagh v. Procurator Fiscal [2003] ScotHC 55 (31 October 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Marnoch Lord Carloway Temp. Judge G. Nicolson, Q.C.	152/03     OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD MARNOCH in BILL OF SUSPENSION by JAMES MOYNAGH Appellant against PROCURATOR FISCAL, AIRDRIE Respondent _____________

Appellant: Shead;

Respondent:

31 October 2003

[1]     This is a Bill of Suspension which seeks to suspend the conviction of the complainer of a charge that on 17 May 2000 at Airdrie Academy, he did, while employed as a teacher there, use lewd, indecent and libidinous practices and behaviour towards X, aged 15 years, and did kiss her on the mouth, all in contravention of Section 6 of the Criminal Law (Consolidation)(Scotland) Act 1995.

[2]     The reason the matter comes before us in the form of a Bill of Suspension is that it is alleged that the prosecution and conviction were incompatible with Article 7 of the European Convention on Human Rights as that Article has been construed by the European Court of Human Rights. However, in the event, Mr Shead, who appeared for the complainer, eschewed any reliance on Article 7 if Section 6 of the 1995 Act were to be construed in the manner for which he contended, namely, that it was designed to strike only against conduct which could be seen as tending to corrupt a child under 16 years of age, having regard to the particular age of the child in question and the general background to the alleged offence. At least for present purposes we are prepared to proceed on that basis. In that connection, we note that, at para.49 of the opinion delivered by the Lord Justice Clerk in the recent case of Webster v Dominic 2003 S.C.C.R. 425, the essence of the common law offence of lewd, indecent and libidinous behaviour is described as being "the tendency of the conduct to corrupt the innocence of the complainer".

[3]     There is thus left only for consideration what Mr Shead described as the "sufficiency point" perhaps best encapsulated by the proposition contained in Article 3 of the Bill that, "The nature of the kiss and the surrounding circumstances did not bring the act within the statutory definition." Although this may come close to a belated attack on the relevancy of the charge, and although the point might in any event have been better canvassed in a Stated Case, we are again prepared, for present purposes, to address it on its merits. In that regard, we see immediately the force of Mr Shead's submission that a single kiss which, as here, was mutually entered into with a 15 year old girl is not obviously conduct struck at by Section 6 of the 1995 Act. That said, the sheriff tells us that this was no simple kiss. On the contrary it was a "French kiss", described by an eye-witness in the following terms:

"I was very close. I stopped. That's when they started kissing. On lips. They both went intae each other. I just left them - I not into room."

Such a kiss, it seems to us, takes on a rather special character and, as the learned Sheriff points out, can properly be seen as calculated to excite deeper sexual desires and lead to closer intimacy. Viewed in that light the present case is, perhaps, not wholly dissimilar from Boyle v Ritchie 1999 SCCR 278, where the general context and surrounding circumstances enabled the court to attach particular significance to the kiss which was libelled in the charge there under consideration. In the result, albeit not without some hesitation, we have reached the view that it was open to the Sheriff, who heard all the evidence, to infer that the appellant's conduct on this occasion did, as the Sheriff puts it, amount to "sexual abuse" of the child, assuming, as we do, that that phrase carries with it the notion of a tendency to corrupt the innocence of the child in question.

[4]     The Bill will accordingly be refused.

[5]     In reaching the foregoing result we have placed no reliance on the fact that the appellant was the teacher of the complainer or on the fact that he was some thirty years her senior. While these are undoubtedly aggravating features of the case, their immediate relevance is, we think, confined to sentence. Whether they are features which could make illegal conduct not otherwise falling within the ambit of the statutory charge is a matter on which we express no opinion. The Advocate Depute came eventually to submit that these factors could be so used but was unable to find any authority to support that proposition.

DL

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