APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kingarth Lord Eassie Lord Bonomy	[2010] HCJAC 14 Appeal No: XC884/06 OPINION OF THE COURT delivered by LORD KINGARTH in APPEAL AGAINST CONVICTION by JOHN SOMMERVILLE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: C. Shead; Martin, Johnston & Socha, Kirkcaldy

Respondent: S. Bowie QC, AD; Crown agent

10 February 2010

[1] On 6 November 2006, at Dunfermline Sheriff Court, the appellant was found guilty, by a majority verdict of the jury, of the following charges:

"(002) on one occasion between 15 September 2001 to 14 September 2002, both dates inclusive, at 24 Hatton Green, Glenrothes, Fife you John Sommerville did use lewd, indecent and libidinous practices and behaviour towards [JM], date of birth 15 September 1989 then aged 12 years and did offer said [JM] money to play a sexually intimate game;

(003) on one occasion between 1 June 2001 and 31 August 2001, both dates inclusive, at a Scout Association Camp in Forthill, Virginia, United States of America you John Sommerville did use lewd, indecent and libidinous practices and behaviour towards [MB], date of birth 2 July 1988, c/o Fife Constabulary, Kirkcaldy, Fife and did offer said [MB] money to play a sexually intimate game, the offence being one to which Section 16B of the Criminal Law (Consolidation) (Scotland) Act 1995 applies to found jurisdiction."

He was sentenced to 300 hours of community service. He has appealed against conviction.

[2] The Crown case depended upon the application of the Moorov Doctrine. In his report to this court, the sheriff describes the evidence of the two complainers as follows:

"The complainer in charge 2 was [JM]. His evidence was that he was a member of the scout group of which the appellant was the leader. He described an incident when he was aged 12 when he attended on his own at the appellant's house to assist in cleaning out the appellant's attic. He was to be taken to a football match by the appellant later that day. He described how the appellant asked him to play a game for money. This was in the context of the complainer needing money for a trip to Holland with the Scout Association. The complainer gave evidence to the effect that the game was called 'Nervous'. He described the appellant as explaining that he would put his hand on the complainer's chest and that the complainer would earn money the longer the appellant's hand was on the complainer's body. The complainer described the appellant putting his hand on the complainer's chest and moving his hand down the complainer's body until it reached the belt of his trousers at which point the complainer told the appellant to stop it because it was "getting a bit close for my liking". The complainer said that the appellant stopped when asked to do so. He said that he felt uncomfortable about what had happened.

The complainer in charge 3 was [MB]. He described an incident in the United States of America when he was age 12 and was attending a Scout Association camp. The appellant was a scout leader at this camp. The complainer gave evidence about receiving a message to go to the appellant's area of the camp where he met the appellant who took him back to his tent. They were then alone together in the tent. The complainer's evidence was that the appellant asked him if he was 'okay for money' and whether he would like to win some money. The complainer was told to lie down on the ground by the appellant and did so. The complainer was wearing shorts. The appellant then explained the rules for the game to the complainer who thought the game was called "Who Wants to be a Millionaire". The appellant told him that he was playing for $100 and that he was going to put his hands on the complainer's body and that he would win $10. The clear inference was that the longer his hand was on the complainer's body, the more money the complainer would earn. According to the complainer, the appellant put his hand on the complainer's leg at his ankle. The complainer's understanding was that the appellant was 'going to go further'. He gave evidence about feeling pressured and scared. The complainer told the appellant to stop, and the appellant did so. The appellant then told the complainer that he had been a "good sport" and the appellant then gave the complainer $10. The complainer said that he was embarrassed about what had happened and told no one."

[3] In his charge to the jury, the sheriff defined the crime of lewd, indecent and libidinous practices and behaviour as follows:

"Now, ladies and gentlemen, let me turn to the actual nature of the charges. As you will see from the indictment, they are charges of lewd, indecent and libidinous practices and behaviour towards the two boys, and I have to direct as to what that involves in law. Now, it's a crime to indulge in such practices towards children under the age of puberty, whether they consent or not. Consent is irrelevant. The age of puberty is 12 for a girl, and in this case of course we are dealing with two boys, and it's 14 for a boy, and the aim of the law is to protect these young children from sexual abuse. Now, the essence of the crime is indecent conduct, intended to gratify the accused sexually, or intended to corrupt the child's innocence. There are two elements. There is the conduct, which must be indecent and then there is the intention, the accused's intention, which must be either sexual gratification or to corrupt the child's innocence. Now, the conduct can be practised on the child directly or in the child's presence. So, sexual abuse can take many forms. It can be indecent physical contact, indecent conduct in the presence of the child or an indecent conversation with a child. That's the conduct. And separately it requires an intention on the part of the accused. That's a state of mind. Now, intention is a state of mind, to be inferred or deduced from what's been proved to have been said or done. You cannot enter the mind of an accused person. You simply have to look at his conduct and then decide whether you can infer from that, what his intention was."

[4] He went on to say inter alia, with specific reference to charge 3:

"You then turn to MB's evidence, and you go through the same exercise. Do you believe M when he said that he was summoned to the accused's tent, and lay down on the floor to play a game for money involving putting hands on M's body and that the accused put his hand on M's leg at his ankle, and then stopped when told to do so by M? So, do you accept that happened? If you don't, that's the end of the matter. If you have a doubt as to whether it happened, that's the end of the matter. If you accept that it's happened, you then move on to say 'Was that a sexually intimate game constituting indecent conduct, and was it done with the necessary intent required to constitute the offence?"

[5] Two grounds of appeal were argued in support of the appeal. We deal with each of these in turn.

[6] In the first of these, the ground of appeal as stated in the Note of Appeal is that the sheriff erred in refusing a submission of no case to answer made on the appellant's behalf given, in particular, that

"The circumstances in charge 3 were such that the behaviour complained of ... did not have the necessary sexual component required for the offence of lewd, indecent and libidinous practices".

As developed in argument the submission came to be that the evidence led was insufficient for the Crown to prove that the conduct involved a sexually intimate game. The evidence of the complainer was that physical contact was restricted to the appellant putting his hand on the complainer's ankle. If there was no sufficient evidence as respects charge 3, charge 2, which depended on application of Moorov, equally could not be supported.

[7] We have come to the clear view that there is no merit in this ground of appeal. Taking the evidence of the complainer at its highest, the conduct of the appellant, who was 35, involved offering the complainer, who was 12 or 13, a chance to win some money, telling him (at a time when he was wearing shorts) to lie down on the ground and that the appellant was going to put his hands on his body, the clear inference being that the longer his hand was on the complainer's body the more money the complainer would earn. Although in the event physical contact went no further than his ankle, the complainer's understanding was the appellant was "going to go further" and, as a result, that he felt pressured and scared. In the circumstances it was plainly open to the jury to take the view that the appellant had indeed, as the charge suggested, offered the complainer money to play a sexually intimate game.

[8] As drafted the second ground of appeal which was argued reads as follows:

" The trial judge misdirected the jury in relation to the approach they should take to the offences under consideration. Reference is made in particular to pages 12-14 of the charge to the jury.

In particular it is submitted that it was an error to direct the jury that it was sufficient for the Crown to prove that the conduct complained of was for the appellant's sexual gratification. Reference is made to the decision in Webster v Dominick 2003 SCCR 525 at [49]."

[9] One might in the circumstances have anticipated argument along the lines which the court, it seems, understood to have been made (and to have been conceded by the Crown) in Heggie v HMA [2009] HCJAC 96, namely that a necessary element of mens rea for the crime is an intention to corrupt the innocence of the complainer, and thus that it would be wrong for a jury to be directed that this was simply a possible alternative (see in particular paragraphs. [9], [10] and [12] of that recent decision). Instead, the submission clearly presented on behalf of the appellant was different (albeit counsel's position was that the argument presented in Heggie v HMA had in fact been the same, so far as he recalled). The submission was that, although the crime of lewd, libidinous and indecent practices was committed by an accused deliberately engaging in indecent conduct directed towards a specific victim within the class of persons whom the law protected, the essence of the crime was conduct tending to corrupt the innocence of the complainer. Reference was made to Webster v Dominick 2003 SCCR 525, in particular paragraph [49], Moynah v Speirs 2003 SCCR 765 and, at least under reference to the submission of the parties, H v Griffiths 2009 SCCR 312. This essential element, which would fall to be judged objectively in any case, could be seen as qualification of, or as an additional requirement to, the relevant indecent conduct. On either view, by failing to give clear directions as to a matter which was of the essence of the crime, the sheriff materially misdirected the jury. In the historic case of McKenzie v Whyte (1864) 4 Irv 570 the Lord Justice Clerk (Inglis) remarked at page 575:

"There is no doubt that indecent exposure of the human person under certain circumstances and conditions, and with certain effects, is a crime known to the law of Scotland. But so far as I am aware, there are only two kinds or classes of this crime. The one is an offence against private persons; the other an offence against public morals. The former is what is well known under the description of 'lewd, indecent, and libidinous practices,' where a person exposes himself with the view and with the effect of corrupting the moral of others."

Although reference was made to these remarks, it was no part of the appellant's submission that in the modern law it was necessary for the Crown to prove that an accused had the intention to corrupt the complainer's innocence or that that innocence was in fact corrupted; indeed in so far as the sheriff had also indicated that the mens rea of the crime could be the intention of an accused to sexually gratify himself that could be regarded as potentially misleading and was unsupported by authority. In circumstances where it could not be said that the verdict of the jury would inevitably have been the same, the misdirection complained of had resulted in a miscarriage of justice. Reference was made to Paterson v HMA 2008 SCCR 605 and to Touati v HMA 2008 SCCR 211. The sheriff's focus on intention to sexually gratify could well be said to have deflected the jury from the essential question. The reaction of the complainers pointed away from any tendency to corrupt.

[10] On behalf of the Crown the Advocate depute accepted that, for the reasons advanced on behalf of the appellant, it could be said that the sheriff had misdirected the jury. Nevertheless it could not be said that this had led to any miscarriage of justice. It was plain, in the circumstances, that the jury must have been satisfied that the appellant deliberately engaged in indecent conduct towards the complainers of the kind described in the indictment; conduct which, if proved, could not be judged other than as having a tendency to corrupt their innocence. The Advocate depute, who had not himself then appeared, was not in a position to confirm what had been argued, or conceded, on behalf of the Crown in Heggie v HMA.

[11] In deciding this appeal we are content to proceed on the basis that the appellant's submissions as to the essence of the crime of lewd, indecent and libidinous practices and behaviour are, as was accepted by the Advocate depute, well founded. In Webster v Dominick it was decided by a court of five judges that properly understood there was no such crime as shameless indecency in Scots law. It was held that indecent conduct was criminal either as lewd, indecent and libidinous conduct or in circumstances amounting to an affront to public decency. In the course of delivering the leading judgment, and after reference to copious authority, the Lord Justice Clerk said at paragraph [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 HMA 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."

[12] It may perhaps be open to question whether the Lord Justice Clerk, in referring to the tendency to corrupt the innocence of the complainer, was intending to define an essential element of the crime or simply to explain why any indecent conduct directed towards a relevant complainer is regarded as criminal, but the use of language tends to suggest the former. That, at any rate, is how it has subsequently been interpreted. In Moynah v Speirs, where the evidence related to a teacher who gave a "French kiss" to a 15 year old pupil, the court decided that it was open to the sheriff to find the accused guilty of an offence under Section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995, and in particular,

"to infer that the appellant's conduct on this occasion did, as the sheriff puts it, amount to 'sexual abuse' of the child, assuming, as we do, that that phrase carries with it the notion of a tendency to corrupt the innocence of the child in question".

[13] We are further prepared to proceed on the basis, again as accepted by the Crown, that the failure of the sheriff to stress this element of the crime could be said to have amounted to a misdirection.

[14] It will be apparent thus far that the basis on which we were invited, and are prepared, to judge the sheriff's directions differs from the argument which the court in Heggie v HMA understood to have been made on behalf of the appellant and to have been conceded by the Crown. In the present appeal, whatever may have been argued in Heggie v HMA, neither party submitted that a necessary element of the Crown's proof in a charge of lewd, indecent and libidinous practices is an intention on the part of the accused to corrupt the innocence of the complainer (or indeed an intention to sexually gratify himself). As to both of these matters we consider the parties before us were well founded. As to the former, which is more directly in point, there is nothing in the passage in Webster v Dominick at para.[49] which could properly be taken as referring to any need to prove an intention to corrupt the innocence of the complainer. Although in the 1860s the Lord Justice Clerk in McKenzie v Whyte made the (obiter) observation quoted above, it would, we consider, be going too far to suggest any such requirement in the modern law. Indeed, it is to be noted that in Gordon, Criminal Law, 3^rd edition, it is said, at paragraph 36.13, albeit in the context of a general discussion of indecent exposure, that in so far as the Lord Justice Clerk spoke of exposure "with the view and with the effect of corrupting the moral of others"

"... this is too narrow a definition. The man who stands under a lamp-post and exposes himself to passing women may not be trying to debauch them, and may not in fact do more than annoy them, but he is guilty of indecent exposure because he is exposing himself to them, and his exposure is for him a sexual act."

Nor, although this point does not so directly arise in the present case, are we persuaded that there is any authoritative support for the need to prove an intention to obtain sexual gratification. That would appear to relate to a matter of motive only. No doubt in any particular case where such an intention is clear, it may be easier to identify conduct (such as exposure of the person) which could be said to be deliberately directed towards a victim (see Gordon, op cit, at paragraph 36.13). But it is to be noted that the Lord Justice Clerk in Webster v Dominick at paragraph [53], although in the context of a discussion of public indecency, said,

"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 course of disposal".

[15] The issue in the present appeal comes to be whether the misdirection identified, and accepted, could be said to have been material and to have led to a miscarriage of justice. Given the stress laid by the sheriff on the need to prove indecent conduct directed towards the complainers, and his statement that the aim of the law was to "protect these young children from sexual abuse", we doubt whether, in the circumstances of the case, any misdirection could be described as material (and, on the face of it, his directions on mens rea added unnecessary additional hurdles for the Crown). In any event we do not consider it could be said to have led to any miscarriage of justice. It is not easy in the abstract to envisage indecent conduct directed against a relevant victim which does not have a tendency to corrupt. But whatever may be said in other cases, if the jury in this case were satisfied, as they must have been in respect of both charges, that the appellant, then in his mid thirties, offered money to the 12 or 13 year old complainers to engage with him in sexually intimate games, the only reasonable conclusion, in our opinion, is that he engaged in conduct tending to corrupt their innocence. We are not persuaded that anything in the reaction of the complainers points away from that conclusion.

[16] In these circumstances, the appeal against conviction is refused.