Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 61

HCA/2015-001582-XJ

Lord Brodie

Sheriff Principal M M Stephen QCGarry McNair

OPINION OF THE COURT

delivered by LORD BRODIE

in

APPEAL AGAINST SENTENCE

by

GARRY MCNAIR

Appellant;

against

PROCURATOR FISCAL, DUNDEE

Respondent:

Appellant:  Souter Sol Adv;  Paterson Bell Solicitors, Edinburgh for Duncan & McConnell, Dundee

Respondent:  Carmichael;  Crown Agent

7 July 2015

[1]        This is the appeal at the instance of Garry McNair who pled guilty at Dundee Sheriff Court to a charge of common law public indecency.  He was sentenced to a period of imprisonment for 5 months.  That is not subject to challenge.

[2]        The charge to which the appellant pled guilty is that on a specified date, on a public service vehicle travelling between two addresses in Dundee, he and a named co‑accused did commit an offence of public indecency in that they did engage in oral sex.

[3]        The appeal to this court is limited to a challenge to the sheriff’s decision to make the appellant subject to the registration requirements of the Sexual Offences Act 2003.  Mr Souter drew our attention to the relevant statutory provisions which are found in section 80 of and schedule 3 to the 2003 Act.  In terms of section 80 a person is subject to the notification requirements of the relevant part of the Act, if he is convicted of one of the offences listed in schedule 3.  Among the offences listed in schedule 3 at paragraph 41A is the offence of public indecency, but it is subject to two requirements.  First, that a person other than the offender be involved in the offence who is under the age of 18 and secondly, that the court determine that there was a significant sexual aspect to the offender’s behaviour in committing the offence.

[4]        The submission on behalf of the appellant concentrated on the two requirements in addition to conviction of the offence of public indecency:  the sexual aspect and the involvement of a person under 18.  It was accepted by Mr Souter that the sexual aspect was present and the sheriff was entitled to so find.  However the submission was that on the facts available to the sheriff it could not be said that a person under the age of 18 was involved.

[5]        In his report the sheriff explains that he viewed CCTV footage which records the appellant and his co‑accused engaged on the back seat in the upper deck of a double decker bus in the way described in the charge to which the appellant pled guilty.  The only finding by the sheriff as to the involvement of a person under the age 18 is restricted to a sentence which is in these terms:

“There were passengers on this deck including a primary school aged child accompanying an adult.”

Mr Souter’s submission was that the presence of such a child did not amount to the necessary involvement which paragraph 41A of schedule 3 required. 

[6]        We have been unable to accept that submission.  What is concerned here is an offence of public indecency and in our opinion where that is the offence there is sufficient involvement of members of the public, including those under the age of 18, that they are present and therefore exposed, or potentially exposed, to the act of indecency in a public place which is being perpetrated.  Involvement does not require anything further where the essence of the offence is exhibitionist behaviour with a sexual aspect. 

[7]        Accordingly the appeal is refused.