Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Johnston C.G.B.Nicholson, CBEcholson, CBE, QC	[2007] HCJAC31 Appeal No: XJ1263/06[MSOffice1]    OPINION OF THE COURT   delivered by LORD JOHNSTON   in   NOTE OF APPEAL AGAINST SENTENCE   uUnder   Section 186(1) of the Criminal Procedure (Scotland) Act 1995   by   ANDREW JAMES NELSON     _______

 

 

Act: Shead, AdvocateWheatley, Solicitor Advocate

Alt: Murphy, A.D.

8 May 2007

 

[1] On 30 August 2006 the appellant pleaded guilty before the Sheriff of Grampian Highlands and Islands at Stonehaven in respect of the following charge:

"on 18 February 2006 at Slug Road, Stonehaven, you ANDREW JAMES NELSON did commit an offence of public indecency in that you did remove your clothing, expose your genitals, and gyrate against a hand rail".

[2] The Sheriff fined him and also placed him on the Sexual Offenders Register in terms of the Sexual Offences Act 2003 for the following reasons:

"On the basis of the offence as described, I identified a significant sexual aspect to the appellant's behaviour. It appeared to me that, in so far as the appellant removed his lower clothing and exposed his genitalia, then he only behaved in that way because of the sexual aspect of his behaviour. It was that sexualised behaviour that made his behaviour noteworthy, that drew attention towards him. He could have just dropped his trousers - consistent with horse play - but he went that bit further and dropped his pants. He then gyrated - an act designed, one could reasonably infer - to draw attention to the hanging genitalia. I took the view that the 'reasonable man', watching such behaviour, would have particular regard to the appellant exposing his genitals - that it would be that aspect of the behaviour which would render the appellant's behaviour more noteworthy than it would otherwise have been. I thought that any one observing such behaviour would identify in it a significant sexual aspect.

The appellant's behaviour could, I think, be contrasted with that of a man charged with committing the offence of public indecency by urinating in a public place. The exposing of his genitalia in that context may well be an offence, but the circumstances may suggest no sexual aspect whatsoever".

The appellant appeals to this Court only in respect of having been placed on the Sexual Offenders Register.

[3] It seems to be clear that the sheriff As the sheriff has stated he proceeded upon the basis that he required to consider the issue raised in respect of the Sex Offenders Register by reference to paragraph 60 of the third schedule to the Sexual Offences Act 2003 which is in the following terms:

"Aan offence in Scotland other than is mentioned in paragraphs 360 to 59 if the Court ins imposing a sentence or otherwise disposing of the case determines for the purposes of this paragraph that there was a significant sexual aspect to the offender'sdefender's behaviour in committing the offence".

We entirely understand why the sheriff approached the matter in this respect since paragraph 60 of the Schedule is plainly a catch up or catch all provision not covered by the previous provisions of the schedule applying to Scotland namely in paragraphs 36 to 59.36-60.

[4] However, it has to be recognised, as counsel appearing for the appellant pointed out, that the relevant provision of the various paragraphs applying to Scotland is not paragraph 60 which is as we have indicated plainly a catch up or residual provision but rather paragraph 42 which deals with shameless indecency. While Parliament has not amended that provision, since the decision of Webster v Dominick 2003 S.C.C.R.525 the word "shameless" has been declared superfluous by this Court in the context of public indecency, which properly recognises the nature of the offence. Thus in this case that is the offence to which the appellant pleaded guilty.

[5] In these circumstances the sheriff should have applied his mind to the provisions of that paragraph. H and having regard to the fact that it reduces the sexual nature of the offence only to a situation where only a person (other than the offender) was under 18 and was involved in the offenceis the victim, there is no scope for any sexual connotation to a public indecency offence outwith that particular context. Accordingly, again quite understandably for the reasons we have given, the fact is the sheriff should have not even considered the issue of the Sex Offenders Register in the context of the charge which the appellant faced.

[6] In these circumstances we will allow the appeal to the extent of quashing the entry on the Sex Offenders Register.