The need for reform of the old common law on shameless indecency became increasingly urgent in the 1980s and 1990s.
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1. The need for reform of the old common law on shameless indecency became increasingly urgent in the 1980s and 1990s. Prior to 2003, courts generally based their decisions on the famous and unvouched statement in McDonald’s Criminal Law that all shamelessly indecent conduct is criminal.[1] However, McDonald did not provide a definition of shameless indecency along with his statement. Thus, left it down to the courts to interpret the meaning of the statement and define the acts that would fall under this category. It was charged against those who arranged, for example, a sexually stimulating performance, so long as that performance involved some form of corruption and did more than stimulate ordinary sexual desires.[2] The width of that crime and its amorphous nature made it very difficult to describe or justify.[3]
One of the most significant cases when looking at the development of the law on shameless indecency was McKenzie v Whyte.[4] This was the first case in which the court considered the definition of the crime of ‘indecent exposure of the person’.[5] However, the complaint held against those accused mentioned no form of ‘shameless’ conduct. The significance of this case lies in the distinction made by the court between the crime of 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.[6] Upon Lord Justice-Clerk’s analysis of this case, it was found that the crime was dependant on the public quality of the conduct, namely exposure to the public at large even where the locus was technically a private place.[7]
The later decision in McLaughlan v Boyd[8] brought confusion to the law on shameless indecency as it provided an ulterior distinction to the law compared to what was held in McKenzie v Whyte.[9] The main question in the appeal was whether the common law crime of lewd, indecent and libidinous practices could be committed against a person who was over the age of puberty.[10] In reference to this question the Lord Justice General approved McDonald’s statement on shameless indecency. But because the appeal was concerned with the crime of lewd, indecent, and libidinous practices and of indecent assault, the Lord Justice General’s approval was obiter. The courts final decision was that the age or sex of the victim did not matter, all lewd, indecent, and libidinous conduct were to be classified as criminal.
From 1934 until 1978 there was no reported case in which shamelessly indecent conduct was charged eo nomine.[11] The first reported case that the charge was expressly one of shamelessly indecent conduct[12] arose in 1978 and was that of Watt v Annan.[13] This case involved the accused who was the owner of a private member’s club where he showed films of an indecent nature. The charge held against the accused mentioned that he conducted himself in a shamelessly indecent manner. The nature of shameless indecency was criticised by the court because it failed to mention whether indecency in private, not falling within the category of lewd and libidinous practices, was a crime. The high court adopted the decision in McLaughlan v Boyd[14] that concluded that any form of conduct could be shamelessly indecent, depending on the nature of the conduct, the circumstances in which it took place and the necessary criminal intent.[15]
The latter case of Lockhart v Stephen[16] proved contradictory to the decision held in Watt v Annan.[17] The case involved the accused who had hired erotic dancers to perform at his bar without any prior detailed knowledge of the content of their performances.[18] It was held that because the accused did not exercise the necessary knowledge of the act, to which there was no form of corruption, he could not be convicted of shameless indecency. It was held by the court that they had to adapt to what was now acceptable in the social climate of 1987, 9 ...
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The latter case of Lockhart v Stephen[16] proved contradictory to the decision held in Watt v Annan.[17] The case involved the accused who had hired erotic dancers to perform at his bar without any prior detailed knowledge of the content of their performances.[18] It was held that because the accused did not exercise the necessary knowledge of the act, to which there was no form of corruption, he could not be convicted of shameless indecency. It was held by the court that they had to adapt to what was now acceptable in the social climate of 1987, 9 years after the decision in Watt v Annan.[19]
. The law on shameless indecency has proved to be increasingly controversial over the years. Although McDonald’s statement may have provided a basis for the law, it was regarded as being of unsound nature that was misinterpreted by the courts. However, differentiating decisions made by the courts on this area of law has resulted in the profound intrusion on people’s private lives.
Referring to the decision of McKenzie v Whyte[20] it is clear that there could be concern about the law not respecting people’s boundaries and their right to privacy. The court decided in this case that an individual would be convicted of indecent exposure if the locus was technically a private place. An example of shameless indecency committed on private property can be seen in the case of Usai v Russell.[21] This case involved the accused who had stood naked at the window of his own house, unaware that he was staring at two women who were walking by. The court held that there was no need to show that the accused actually knew his conduct had been witnessed by other persons[22] and therefore he was convicted of shameless indecency. Lord Gill based his judgment on the effect of the minds of the public as a result of the indecent act that was conducted. For that reason, the decision in McKenzie v Whyte[23] has made it increasingly difficult for individuals to go about their normal private lives. Simply walking past a window naked, unaware of onlookers, could result in a successful conviction.
Cases surrounding sexual harassment and shameless sexual conduct have also amounted to the interference on people’s private lives by the courts. The decision in McLaughlan v Boyd[24] held that regardless of the age and sex of the victim, all lewd, indecent, and libidinous practices were to be classified as criminal. An example of this statement being adopted can be seen in the case of Batty v HM Advocate.[25] This case involved the accused who was convicted of lewd, indecent, and libidinous practices towards five girls over the age of puberty whilst acting as a houseparent. It was held by the court that if the acts committed by the accused were done deliberately then he was to be guilty and there was no need to prove whether his acts were shamelessly indecent. Victims of sexual harassment often state that they have felt invaded and thus violated.[26] Thus, the victims have experienced an unwelcomed intrusion upon their physical and or emotional private space.[27]In conclusion, the courts intruded on adult private lives where shameless indecency was charged in respect of consensual acts committed in private circumstances, which the Crown alleged to be offensive by reason of the relationship between the participants.[28]Since the sex act is deemed a personal and private matter between partners, it is not for public scrutiny.[29]
The concept of indecent and obscene publications or voyeurism also represents a breach of privacy. The decision in Watt v Annan[30], which was based on McLaughlan[31], held that any form of conduct could be shamelessly indecent, depending on the nature of the conduct, the circumstances in which it took place and the necessary criminal intent. An example of this decision put in practice can be seen in the case of Robertson v Smith.[32] This case involved the accused who had exposed for sale indecent and obscene books and magazines as well as films and playing cards. The court held that the accused was fully aware of the type of custom he was seeking to cultivate and of the nature of the wares he was offering to the adult public for sale[33] and therefore was convicted of shameless indecency. According to this decision, it could be said that an individual would be convicted of shameless indecency if they proceeded to watch films of an indecent nature within the presence of others who did not feel comfortable in viewing this material, regardless of whether the locus was in a private place. And so, although it may not be illegal to view indecent material within a private place, it becomes a matter of legal debate when unwilling or underage individuals are forced to watch or are simply in the presence of that material being shown. Thus, encouraging adult’s to be extra vigilant when viewing these publications in their own homes in order to prevent the display of the material to any unwilling individuals.
. 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.
Word Count – 1837
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[1] Andrew Lothian, Indecency no longer ‘shameless’, <http://www.journalonline.co.uk/Magazine/48-10/1000546.aspx%20accessed%2003/12/16> 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
[8] 1934 JC 19
[9] Ibid 4
[10] Christopher H.W. Gane, Charles N. Stoddart & James Chalmers, A Casebook on Scottish Criminal Law (4th edn, Thomson Reuters (Legal) Limited 2009) 605
[11] Christopher H.W. Gane, Charles N. Stoddart & James Chalmers, A Casebook on Scottish Criminal Law (4th edn, Thomson Reuters (Legal) Limited 2009) 606
[12] Christopher H.W. Gane, Charles N. Stoddart & James Chalmers, A Casebook on Scottish Criminal Law (4th edn, Thomson Reuters (Legal) Limited 2009) 606
[13] 1978 SLT 198
[14] Ibid 8
[15] Andrew M. Cubie, Scots Criminal Law (4th edn, Bloomsbury Professional Limited 2016) 180
[16] 1987 SCCR 642
[17] Ibid 13
[18] Ibid 16
[19] Ibid 13
[20] Ibid 4
[21] 2000 SCCR 57
[22] Sarah Christie, An Introduction to Scots Criminal Law (2nd edn, Dundee University Press 2009) 159
[23] Ibid 4
[24] Ibid 8
[25] 1999 SLT 1047
[26] Robert H. Albers, Shame: A Faith Perspective (The Haworth Press, Inc. 2009) 10
[27] Robert H. Albers, Shame: A Faith Perspective (The Haworth Press, Inc. 2009) 10
[28] Juliette Casey, Offences of Indecency Revisited (Scots Law Times 2003) S.L.T. 2003, 27, 225-230
[29] Robert H. Albers, Shame: A Faith Perspective (The Haworth Press, Inc. 2009) 10
[30] Ibid 13
[31] Ibid 8
[32] 1979 SLT 51
[33] Ibid 32
[34] 2003 S.L.T. 975
[35] Pamela R. Ferguson & Claire McDiarmid, Scots Criminal Law A Critical Analysis (Dundee University Press 2009) 311
[36] Ibid 4
[37] Pamela R. Ferguson & Claire McDiarmid, Scots Criminal Law A Critical Analysis (Dundee University Press 2009) 311
[38] Juliette Casey, Offences of Indecency Revisited (Scots Law Times 2003) S.L.T. 2003, 27, 225-230
[39] Juliette Casey, Offences of Indecency Revisited (Scots Law Times 2003) S.L.T. 2003, 27, 225-230
[40] Timothy H. Jones & Michael G.A. Christie, Criminal Law (4th edn, Thomson Reuters (Legal) Limited 2008) 373
[41] Juliette Casey, Offences of Indecency Revisited (Scots Law Times 2003) S.L.T. 2003, 27, 225-230
[42] Ibid 35
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