APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal Nos: XC408/03
OPINION OF THE COURT
delivered by LORD MacLEAN
APPEALS AGAINST CONVICTION
HER MAJESTY'S ADVOCATE
HER MAJESTY'S ADVOCATE
Appellant: Shead; Wheatley & Co. (Graham Sneddon):
Brown; Blair & Bryden, Dunoon (P)
Respondent: Turnbull, Q.C., A.D.; Crown Agent
14 April 2005
Introduction These appeals were heard together because in each case the appellant wished to argue the same point. Although other grounds of appeal have been presented in each case argument on these has not yet been heard. The appellants in both cases were convicted of conducting themselves in a shamelessly indecent manner in relation to young girls. While their convictions were under appeal a Full Court in Webster v. Dominick 2003 SCCR 525 2003 S.L.T. 975decided that shameless indecency was not a nomen juris. Where indecent conduct was directed against a victim who was within a class of persons whom the law protects, the crime was that of lewd, indecent and libidinous practices. Where, however, indecent conduct involved no individual victim, it was criminal only where it affronted public sensibility. The crime in that case was one of public indecency, the actus reus having two elements, namely the act itself and the effect of it on the minds of the public. The court pointed out (in paragraph 49) that several cases had been prosecuted as shameless indecency which should properly have been prosecuted as cases of lewd, indecent and libidinous practices. As a result of the court's decision many cases involving indecent conduct towards individual victims were properly to be classified as cases of lewd, indecent and libidinous conduct (paragraph 59).
The verdicts The appellant Graham Sneddon was convicted of the following charge:
"on an occasion between 22 June 2001 and 21 August 2001, both dates inclusive, at [an address and an area of wasteground in Bo'ness] you GRAHAM SNEDDON did conduct yourself in a shamelessly indecent manner towards CL, born 10 November 1991 and HM, born 1 August 1991, both care of Bo'ness Police Office, and did claim that you had lost your dog, induce them to walk with you and help you look for your dog, and at said Foreshore, demand that they remove their clothing, stare at them while them were in a state of undress and threaten them with violence should they report said incident."
At the time of the offence CL was aged 9 and the HM was aged 9 or 10. The appellant, P, was convicted of three offences, one in relation to his step-daughter CW and two in relation to his daughter VP. The verdicts were in these terms:
"(1) on various occasions between 1 March 1992 and 20 August 1993, both dates inclusive, the exact dates being to the prosecutor unknown, at [an address in Dunoon], you did conduct yourself in a shamelessly indecent manner towards your step-daughter CW, date of birth 21 August 1976 and did repeatedly touch, handle and rub her breasts;
(3) on various dates between 31 October 1992 and 31 October 1996 both dates inclusive, the exact dates being to the prosecutor unknown, [at various addresses in Dunoon] you did conduct yourself in a shamelessly indecent manner towards your daughter, VP, date of birth 31 October 1984 and did repeatedly insert your hands under her clothing and repeatedly touch, handle and rub her breasts;
(4) on a date between 31 October 1992 and 31 October 1993, both dates inclusive, the exact date being to the prosecutor unknown, [at an address in Dunoon], you did conduct yourself in a shamelessly indecent manner towards VP, and did induce her to remove her pants, and did handle her breasts and private parts and did induce her to handle your private member."
The submissions Mr. Shead, who appeared for the appellant Sneddon, submitted that there was no alternative verdict which the jury could return, unless statute so provided. He was not saying that another crime could not have been indicted. The crime which was the subject of the charge was not one known to the law of Scotland. Nothing could be substituted for it. While under section 118(2) of the Criminal Procedure (Scotland) Act 1995 the appeal court could substitute an alternative verdict, that alternative had to be one which could have been returned, by the jury, on the indictment. Shameless indecency did not carry an implied alternative verdict. In any event, the jury could not return any other verdict because they were not invited to do so. The Crown could have averred lewd, indecent and libidinous practices as an alternative. To do that would have been the simplest thing imaginable. Had the alternative been added, the trial would have been conducted against different tests. It was clear from Webster v. Dominick that the crime of public indecency was distinct from the crime of lewd, indecent and libidinous practices. The crime of assault with intent to ravish might be nearly related to attempted rape, but it was, at least, of a lower mode or degree. (Robertson v. H.M. Advocate 1998 S.C.C.R. 390). That could not be said about the offence of lewd, indecent and libidinous practices in relation to shamelessly indecent conduct. Further, where there was a difference between the mens rea of two offences, as in the case of wilful fireraising and culpable and reckless fireraising, they had to be averred in the alternative in the indictment (Byrne v. H.M. Advocate 2000 SCCR 77). The sheriff at his own hand could not convict of an alternative that was a different offence (Buchanan v. Hamilton 1989 S.C.C.R. 398). That was the short answer to the point in these appeals. The prosecutor sought conviction on what was understood to be a particular offence and did not invite any alternative conviction. The court could not now substitute a conviction for another offence. It was not just a matter of form: rather it was one of substance.  Classification was important. The appellant had the Convention right to be informed in detail of the nature and cause of the accusation against him. According to Convention jurisprudence the court had power to depart from the legal classification given by the prosecution provided, in particular, that (a) the criminal intent in the offence found applicable was essentially identical to that in the offence which was the subject of the charge and (b) the species facti were the same (McMaster v. H.M. Advocate 2001 S.C.C.R. 517). This, it seems, could be applied to the present appeals because, as Mr. Shead conceded, if any crime had been committed by his client it was that of lewd, indecent and libidinous practices. The fact was that the appellant faced an indictment which did not disclose a crime known to the law (cf. Cochrane v. H.M. Advocate 2002 S.C.C.R. 1051).  Mr. Brown, who appeared for the appellant P, adopted the approach of Mr. Shead, but added that, so far as the conviction on charge (1) was concerned and having regard to the evidence as set out in the sheriff's report, the offence, if committed, could only have been of indecent assault, given the age of the complainer. If so, the directions which the sheriff would have had to give would have been different from those she did give.  The advocate depute's primary position was that the offences in the charge in Sneddon and in charges (3) and (4) of P had simply been mis-described. These offences, and thus the convictions, were on any view those of lewd, indecent and libidinous practices, and it did not matter that an incorrect nomen juris had been applied. It was not necessary to have a nomen juris. Webster v. Dominick had not effected a change in the law. It affirmed the law as it was in McKenzie v. Whyte (1864) 4 Irv. 570. A confusion of ideas had affected the subsequent case law, including Watt v. Annan 1978 J.C. 84. The appellants' criminal records or any certificate under the Sex Offenders' Act 1997 could be corrected administratively.  His secondary position was that if the convictions in both cases fell to be quashed another conviction should be substituted by applying section 118(2) of the Criminal Procedure (Scotland) Act 1995. In terms of section 118(1)(b) the High Court may dispose of an appeal against conviction by setting aside the verdict of the trial court and substituting therefor an amended verdict of guilty, but in terms of section 118(2) such an amended verdict must be one which could have been returned on the indictment before the trial court. If "shamelessly" were to be omitted, the conviction would be one of indecent conduct because that was the species facti. More particularly, the species facti in Sneddon and charges (3) and (4) in P disclosed the crime of lewd, indecent and libidinous practices. Schedule 3 paragraph 9(2) of the 1995 Criminal Procedure (Scotland) Act provided that any part of a charge in an indictment which itself constituted an indictable offence, was separable and it was lawful to convict the accused of that offence.  In relation to Sneddon and charges (3) and (4) of P the advocate depute moved us to set aside the verdicts and to substitute therefor verdicts of guilty of lewd, indecent and libidinous practices under section 118(2). There was no difference in the defence on the species facti, and, when asked to do so defence counsel had failed to identify the difference. The advocate depute did, however, acknowledge that charge (1) in the P appeal, perhaps, presented a difficulty. He accepted that given the age of the complainer he could not invite the court to substitute a verdict of guilty of lewd and libidinous practices. He nevertheless submitted that the court could substitute a verdict of guilty of indecent assault. It appeared, he submitted, that on the evidence as reported by the presiding sheriff such a verdict could have been supported on the evidence. Although that might be thought to give rise to problems, since the Crown case in respect of charge (1) and charges (3) and (4) depended upon application of the Moorov doctrine, that doctrine could still perhaps be applied.
Decision We are not persuaded that it would be right simply to treat the conviction in Sneddon and of charges (3) and (4) in P as if they were convictions for lewd, indecent and libidinous practices. The charges were charged as offences of shameless indecency and the jury in each case was directed accordingly. Verdicts of guilty were returned on the charges as thus laid in accordance with the directions given. As the court made clear in Webster v. Dominick, although in the future any reference to "shamelessness" should be regarded as superfluous, the fact was that hitherto what was understood to have been the discrete crime of shameless indecency was charged as such for a number of years (see e.g. paras. 3, 28, 29, 43 and 49) and indeed since shameless indecency was a sexual offence within Schedule 1 to the Sex Offenders Act 1997 (para. 2(1)(a)(vii) every person convicted of it became a sex offender subject to the notification requirements of sections 1 and 2 of that Act.  On the other hand the question remains, in the event that the verdicts in Sneddon and in respect of charges (3) and (4) in P were set aside, whether this court could substitute amended verdicts of guilty of lewd, indecent and libidinous practices. Subject to certain problems which charge (1) creates for the convictions of all of the charges in P (which we address below), we see no reason why not. If the adverb "shamelessly" were deleted what would be left would be words entirely descriptive of acts amounting to lewd, indecent and libidinous practices. It is not necessary to specify by any nomen juris the offence charged (Schedule 3, para. 2 to the Criminal Procedure (Scotland) Act 1995). The actus reus would, on the face of it, be the same as was thought necessary for shameless indecency, and we are not persuaded that there would, in cases such as these, have been any material difference in respect of mens rea. In these circumstances, having regard to Schedule 3, para. 9(2) and sections 118(1), (6) and (2) of the Criminal Procedure (Scotland) Act 1995 this court would have power to substitute amended verdicts of guilty of lewd, indecent and libidinous practices. The fact that the Crown did not seek such convictions in the trial would not in our view be relevant. (Anderson v. Griffiths 2005 S.L.T. 86 2005 S.C.C.R. 41: cf. Buchanan v. Hamilton 1990 S.L.T. 244, 1989 S.C.C.R. 398).  Charge (1) in P is, however, different. The advocate depute did not suggest that a verdict of guilty of lewd, indecent and libidinous practices could be substituted. He submitted, nevertheless, that an amended verdict of indecent assault could be substituted. There are, in our view, significant difficulties with that. Since the acts referred to were charged as shamelessly indecent conduct, the allegation was, in effect, that the appellant P did these things whether or not the complainer consented. It was not part of the Crown case as charged that the Crown required to prove lack of consent or that the acts were done with the mens rea necessary for indecent assault. As a result, not only was the jury not directed on these matters, but they were specifically directed that the question of consent was immaterial. Moreover, although it seems from the presiding sheriff's report that the evidence was that the complainer was not happy at what was happening, it is not at all clear that the sometimes difficult question of consent was explored in any detail. In these circumstances it cannot, we consider, be said that a verdict of guilty of indecent assault could have been returned on the indictment before the trial court. If that is so, this court has no power to substitute such an amended verdict. It follows that the conviction in respect of charge (1) would require to be quashed. Since the convictions in respect of charges (3) and (4) depended entirely on the application of the Moorov doctrine in conjunction with charge (1), it would appear that the convictions in respect of these charges too cannot be supported (and we did not understand the advocate depute to suggest, in those circumstances, that they could).
Disposal In Sneddon we reject the argument advanced thus far in support of the appeal. In P we shall quash the conviction as respects all three charges.