Public Indecency (common law) Flashcards
Indecent exposure (Common Law) = modern name is “public indecency” Webster v Dominick.
Whether a particular act is indecent is a matter for the tribunal of fact for the court to determine having regard to the time, place and circumstances of the conduct which is said to be indecent.
Webster v Dominick
Man had pornographic magazine in house where children were, children exposed to material- public indecency.
Webster v Dominick [2003]- Leading case on Indecency and redefined the law in relation to this,
The appropriate starting point is the original and straightforward conception of the offences of indecency set out in McKenzie v Whyte. That decision classifies lewd, indecent and libidinous practices as a crime against an individual victim, and recognises that such practices are criminal whether committed in public or in private. It classifies indecent conduct, as such, as a crime against public morals and establishes that such conduct is not criminal where it causes no public offence. In my opinion, that distinction remains valid.
[49] In the modern law, where indecent conduct is directed against a specific victim who is within the class of persons whom the law protects, the crime is that of lewd, indecent and libidinous practices. It may be committed by indecent physical contact with the victim, but it need not. It may be committed by the taking of indecent photographs of the victim (eg HM Advocate v Millbank); or by indecent exposure to the victim (Lockwood v Walker); or by the showing of indecent photographs or videos to the victim; or by other forms of indecent conduct carried out in the presence of the victim. It may be committed, in my opinion, by means of a lewd conversation with the victim, whether face to face or by a telephone call or through an internet chat-room. In each case, the essence of the offence is the tendency of the conduct to corrupt the innocence of the complainer. If I am right in this view, several cases that have been prosecuted as shameless indecency should properly have been prosecuted as cases of lewd, indecent and libidinous practices.
[50] On the other hand, where indecent conduct involves no individual victim, it is criminal only where it affronts public sensibility. Although this crime has no specific victim, it may be appropriate in some cases that the libel should specify the persons who witnessed the conduct complained of (eg Lord Advocate, Petr); but that is a matter of fair notice only. In other cases such specification may be unnecessary and inappropriate (eg Lockhart v Stephen).
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[52]In my view, if such conduct is seen as a public order offence, questions about the depraving or corrupting effects of the conduct complained of are at most of indirect relevance
[53]In the law of Scotland, in my opinion, the actus reus of the crime has two elements, namely the act itself and the effect of it on the minds of the public. As to the indecent act, the paradigm case is that of indecent exposure (1995 Act, sch 5; Lord Advocate, Petr, Lord Justice-General Rodger, p 405A-C; Usai v Russell, Lord McCluskey, p 62B-C); but the crime may extend to any other form of indecency, for example sexual intercourse in public view (Paterson v Lees, Lord Sutherland, p 235F-G;R v B and C), or the making of indecent actions or gestures in a stage show (eg S v F). Whether or not such indecency is committed for sexual gratification is, in my view, irrelevant to liability, being a matter of motive, but may, on conviction, be a relevant factor in the court’s disposal.
[55]As to the public element of the crime, the test, in my view, is not whether the conduct occurs in a public place in any technical sense. Conduct falling within the definition could take place on a private occasion if it occurred in the presence of unwilling witnesses or if it occurred on private premises but was nonetheless visible to the public (eg Usai v Russell; R v Thallman; R v B; Manderson v R, p 1142).
In my view, the crime does not extend to consensual sexual conduct committed in private; nor to the private showing of indecent films and videos; nor to the selling of indecent publications. Nor does it extend to conduct witnessed only by persons who wish to see it - for example, performances by strippers (eg Lockhart v Stephen) or plays with scenes of nudity (eg Cullen v Mecklenberg) and the like - except perhaps where the conduct is such as to offend even members of a consenting audience. On this view, indecent exposure such as that considered in Geddes v Dickson, which was found to have offended some of those present, would continue to be criminal.
[57] On the view that I have taken in this case, shamelessness is not a definitional element in the crime. It is part of the rhetoric used in the early forms of the charge of indecent exposure and later given statutory expression in the 1908, 1954 and 1995 Acts. In my view, it is superfluous and should not be used in the modern style of the charge.
[58] If it is analysed as I propose, public indecency is an offence that fulfils an appropriate role in the maintenance of public order. Whether a particular act is indecent will depend on the circumstances of the case judged by social standards that will change from age to age (cf McGowan v Langmuir,Lord Sands, pp 13, 14). These will be the standards that would be applied by the average citizen in contemporary society. That is the idea that underlies the test of the “community standard of tolerance’ that has been applied in some of the Canadian cases on the subject (eg R v Jacob; R v Tremblay) and the test of the “recognised contemporary standards of common propriety’ that has been applied in some of the Australian cases (eg Phillips v Police). How such standards are applied in an individual case will depend on the time, place and circumstances of the conduct complained of (R v Dunn; cp S v F, p 8A; S v K, p 70D-G). On this interpretation of indecency, there should be no need to libel considerations such as the excitation of depraved, inordinate or lustful desires in the lieges.
[59] Although this approach discredits the theory underlying numerous cases that I have described, it does not follow that the conduct to which those cases relate would in every case be decriminalised. Such conduct would be taken out of a category to which it ought not to belong; but in almost every case the conduct would remain criminal. For the reasons that I have given, many cases involving indecent conduct towards individual victims are properly to be classified as cases of lewd, indecent and libidinous conduct. The showing of indecent films and the exposure for sale of indecent publications are contraventions of the Civic Government (Scotland) Act 1982 (sec 51). Some, but not all, of the sexual relationship cases will involve statutory offences (Criminal Law (Consolidation) (Scotland) Act 1995, secs 2, 3, 5, 6; Sexual Offences (Amendment) Act 2002, secs 3, 4). To the extent that consensual sexual conduct in private does not constitute an existing offence, its legality is in my view a matter for the legislature.
[60] One significant consequence of the view that I propose would be that in cases where a statutory prosecution was time-barred (HM Advocate v Roose), or where the Crown considered that the statutory penalty was inadequate (Batty v HM Advocate), the Crown would no longer have the option of bringing a common law charge of shameless indecency. That is not an unreasonable consequence. Legal principles should not be distorted for the purpose of circumventing statutory time-limits or penalties.
