Scottish Human Rights Law Group

The accused was prosecuted on four charges, of “shameless indecency” on the basis that he was said to have discarded material showing naked female and male persons in a place and manner such that two female children could not help but view it.  It was argued before a court of five judges that the crime of “shameless indecency” was so uncertain in its scope that it failed to comply with the basic requirement of Article 7 that there should be reasonable certainty in the law.

The court found that the charges against the accused were deficient in their specification in that they failed to specify what the “material” in question was, why the nakedness of the persons that the material portrayed was indecent, and how or why the “discarding” of the material referred to, constituted an inducement to the complainers to view it.  The court also took the opportunity of “clarifying” the law on indecent conduct for the future, determining that where indecent conduct was directed against a specific victim who was within a class of victims whom the law protected, the crime should be libelled as that of “lewd, indecent and libidinous practices”, the essence of which was the tendency to corrupt the innocence of the complainer and such conduct being criminal whether committed in public or private.   Where, however, indecent conduct involved no individual victim, it should be charged as “public indecency” and required that the conduct was visible to the public (even if taking place on a private occasion or on private premises) and insofar as it should cause public offence, regardless of whether the perpetrator’s reason for the conduct was some form of sexual gratification.

2005 JC 65

Full report: Webster v. Dominick (314)