The need for reform of the old common law on shameless indecency became increasingly urgent in the 1980s and 1990s.

Authors Avatar by emmaduncan07gmailcom (student)

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]
Join now!

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 ...

This is a preview of the whole essay