The new principals of the law

In Webster v Dominick[34] the accused was found guilty of conducting himself in a shamelessly indecent manner by showing explicit material of female and male persons to children, to which they had no other choice but to view the said material. The accused raised a devolution issue, arguing that the crime of shameless indecency was unspecific, unclear, and not properly defined, and therefore too vague to comply with Art 7 of the ECHR. [35] It was held that the statement given in McDonald’s Criminal Law was wrong and based on an unsound theory and any decision that adopted this view was to be overruled.

However, the approach identified in McKenzie v Whyte[36] that lewd, indecent, and libidinous practices was a crime against individuals, whether committed in public or private, and indecent exposure which was against public morals, was to be the existing approach. This examination of the case law brought about the termination of the term ‘shameless indecency’ and introduced two separate crimes. The first lewd, indecent, and libidinous practices, which involved conduct against a specific victim who is within a class of persons whom the law wishes to protect.

[37] This principal includes physical contact with the victim, indecent photographs, and indecent exposure. This behaviour is criminal whether committed in public or in private and the essence of the offence is the tendency of the conduct to corrupt the innocence of the complainer. [38] The second crime is to be classified as public indecency. This crime is not directed at a specific individual but more towards the public at large. The actus reus of the crime has two elements: the act itself and the effect of the minds of members of the public.

[39] Conduct that would constitute to this crime includes, exposure of the person, sexual intercourse in public view and the making of sexual actions or gestures in a stage performance. [40] Acts such as, consensual conduct committed in private, the showing of indecent films or videos or selling indecent publications, conduct witnessed only by persons who wish to see it, such as performance by strippers, or plays with scenes of nudity[41] are no longer considered to cause public offence and therefore are not criminal for that purpose.

In conclusion, the decision of Webster v Dominick[42] has provided an up-to-date interpretation of the law of shameless indecency. The new principals of the law are clearly defined and are unlikely to be misinterpreted by the courts. The revised elements of the two categories have adapted to the social changes in the modern day by decriminalising certain conduct which was regarded as illegal before but is accepted to an extent in today’s world.

[1] Andrew Lothian, Indecency no longer ‘shameless’, <> accessed 03/12/16

[2] Sarah Christie, An Introduction to Scots Criminal Law (2nd edn, Dundee University Press 2009) 158

[3] Timothy H. Jones & Michael G.A. Christie, Criminal Law (4th edn, Thomson Reuters (Legal) Limited 2008) 372

[4] (1864) 4 Irv 570

[5] Christopher H.W. Gane, Charles N. Stoddart & James Chalmers, A Casebook on Scottish Criminal Law (4th edn, Thomson Reuters (Legal) Limited 2009) 603

[6] Ibid 4 

[7] Christopher H.W. Gane, Charles N. Stoddart & James Chalmers, A Casebook on Scottish Criminal Law (4th edn, Thomson Reuters (Legal) Limited 2009) 604