The Criminal Law of Scotland

Shameless indecency has provided much troubled and remarkable judicial decisions regarding this area of sexual crime in the Criminal Law of Scotland. This thesis was ultimately derived from Macdonald's statement that: "All shamelessly indecent conduct is criminal1" This as we will see was not true then and is not true today, and the decision of Webster v Dominick2 welcomed the abolition of the crime, which a reform had been long over due both morally and legally. THE LAW PRIOR TO WEBSTER McKenzie v Whyte3 was one of the most significant cases in classifying indecent behaviour.

The case drew a distinction between 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. The court also indicated that the crime of indecent exposure did not depend on any 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.

McLaughlin v Boyd4 had introduced a confusion which obscured the distinction made in McKenzie v Whyte and has affected the case law ever since. The courts approval of MacDonald's5 statement that "all shameless indecency conduct is criminal6" was obiter. The main question in this case was whether lewd, indecent and libidinous behaviour could be committed to persons over the age of puberty. Here the court held that all lewd and indecent conduct would be considered as criminal regardless of the age and sex of the victim7. In Watt

The Lord Justice Clerk in Webster explained his reasoning that Usai v Russell 2000 SCCR 57 the accused stood naked inside his own house window, with the lights on and the curtains fully drawn back, and had been seen touching his genitals. It was alleged that U was staring at women, but evidence showed that U was not wearing his contact lenses at the time and could not have been aware of anyone outside. He was still convicted of shameless indecency and Lord Gill used this as an example of public indecency committed on private property.

Lord Gills judgement has two elements in his judgement: An indecent act The effect on the minds of the public. KEY POINTS OF THE DEC ISION AND HOW THE LAW HAS CHANGED The accused had been prosecuted on a summary complaint based upon four charges of shameless indecency towards four girls under the age of puberty by discarding material showing naked female and male persons in a place and in such a manner that induced the children to watch the material. He was also charged in the alternative with breach of the peace.

The accused then launched a devolution issue on the basis that the charge made against him infringed his rights under Article 7 of the European Convention of Human Rights, and the sheriff remitted this issue to the High Court by a bench of five judges for a resolution. It was held that: 1. The complaint of shameless indecency should be dismissed. 2. The obiter dicta in McLaughlin v Boyd that all shameless indecency is criminal was wrong and was based on a unsound theory and the court in Watt v Annan was wrong to rely on it and that all previous cases that did rely on it should be over-ruled. 3.

In McLaughlin v Boyd they did not take into account of the previous law before 1934 such as McKenzie and Whyte, and this created liability, which was uncertain in scope and could extend to areas of private sexual conduct, the criminalization of which should be for the legislature. (Paterson v Lees). 4. It was not appropriate for the court to redefine the offence and found that the correct approach was found in the case of McKenzie v Whyte where it was held that indecent conduct towards another individual was lewd and libidinous behaviour therefore was criminal whether it was done in the public or private sphere.

The other crime of indecent conduct involved an affront to public morals, and if no crime was committed there was no public offence. If we explain this it means that that the crime that existed before McLaughlin was that of public indecency and the question of whether it depraved or corrupted was irrelevant. It was enough that it caused public offence. Nor was it necessary to have an element of sexual gratification whether it was consensual or non-consensual, it could extend to both private and public activity.

It rested on prevailing social standards to test whether a crime was constituted as indecent. 5. Although shameless indecency was decriminalized there would be many cases that could still be dealt with as lewd and libidinous behaviour and there are also certain statutory provisions relating to the showing of indecent films, or sale of indecent publication. The court held that it was a matter for the legislature to decide. 6. The court could treat the matter without any reference to Art 7 7. The charge that was framed was irrelevant.

It was observed that the proper specification of the nature of the material should have been why it was indecent and why the discarding of it induced the complainers to view it should have been given. If this had been done then it would have been possible to frame a charge of lewd and libidinous behaviour. It is important to note that although the court did not make a direct attach on Art 7, the court would have still drawn similar conclusions from the findings. The case illustrates the values of the Convention, which can be found at common law. Equally Art 8 could have also been argued.

An interference with sexual conduct in private must be "prescribed by law" if it is to comply with Art 8. Such law must be foreseeable in application and a high standard of specification would be required to criminalize such sexual conduct. It is doubtful however that shameless indecency would have complied with Art 8. NEW LEGAL SITUATION The case of Webster v Dominick as with Maclean and Bott, was wholly decided on Scots Law and there was no reference to the European Court of Human Rights to which the accused held a devolution issue with reference.

This case abolished the crime of shameless indecency and substitutley created another two main elements, which would be the only relevant offences for the future. One is that Lewd, Indecent and Libidinous Practices, which has always existed in Scots Law, gave a clearer definition of this type of crime. The main essence of this type of crime relate to the protection of the young from indecency being used against them. The other is Public Indecency. This is a crime, which is not directed at any specific victim but more towards public order. This can happen both in public and in private.

Which is defined as an act which offends "public sensibility", such as indecent exposure? However, public indecency will not trigger registration as a sex offender until the offence is included in a revised Sex Offenders Bill, which is unlikely to become law until next year. It has two elements of indecent exposure. One is exposing oneself to a particular person as a sexual act, and the other which is a form of exhibitionism. The high court should conduct a general review of breach of the peace as it would have been better if they had been dealt with together.

The Lord Justice Clerk makes reference that it is criminal enough if the offence caused an offence to people who were to hear of it? Surely the same would apply is people were to see it too, but what if the conduct is not seen by anyone else and it is directed at one single person in a remote place8. There is a difficulty of classifying indecent exposure either as a criminal form of lewd conduct or a breach of public order. I am not sure about the idea that conduct might become criminal if it offends some members of a consenting audience, the obvious remedy would be if it causes offence then walk out don't call the police.

Basically what this case has done is given a different categorization towards the interpretation of shameless indecency and given the legislature an opportunity for a new kind of classification. It has decriminilsed private sexual behaviour between consenting adults. For example where as before it would have been constituted as a crime of shameless decency of homosexual acts between an adult and a boy of the age of 14, today this is no longer a crime9. THE MORAL AND LEGAL IMPLICATIONS

This area is obviously a controversial area, and there would be a great deal of disagreement to occur between advocates who are legal moralists and with those who disfavour any regulation of consensual adult sexual behaviour. The law of Scotland recognizes different interpretations of public tolerance however, the changing notions of what is "indecent" undoubtedly affect these. It should also be noted that so far the legislation does not define "indecency" and this is ultimately left for the courts to decide.

As we can see clearly standards of decency change and therefore the courts are unlikely to attempt to enforce outdated notions of propriety. Some say that the test should be whether any person has been involuntarily harmed by the conduct in question. In my opinion, if the Scottish courts had not changed the law in this way then I think the European Court of Human Rights would have done it eventually10. The case also relies on a community standard test, which is adopted by the Canadian, and US legislation, which is the best that one can do.

It may however raise questions as to how can one definition the exact term of community. The reference of Lees, Petitioner raises another problem in that the court succeeded in the claim that indecent exposure as a form of shameless indecency which is a notifiable offence under the 1997 Sex Offenders Act, was based on "unsound theory" and should no longer be applied in the courts as Indecent exposure is now classified as a form of public indecency which does not fall into the list of that act and would have to further redefined.

In my opinion, the situation of consenting adults behind closed doors is one that the law should not interfere in at all, and the law as it stood before allowed the police through the back door a bit too often, and this should not be deemed as criminal in my view. However because of the age of consent for boys has been reduced to the age of fourteen it could be said that many dozens of sex offenders could launch appeals on their convictions.