Man convicted of public indecency loses appeal against registration as sex offender

High Court of Justiciary
High Court of Justiciary

A man who pled guilty to charge of common law public indecency after a woman performed a sex act on him on the back seat of a bus has failed in a challenge to a sheriff’s ruling to place him on the sex offenders register.

Garry McNair, who was sentenced to five months’ imprisonment and made subject to the registration requirements of the Sexual Offences Act 2003 for the “exhibitionist behaviour”, argued that it could not be said that a person under the age of 18 was involved.

But the Criminal Appeal Court upheld the decision of the sheriff, who had noted that the other passengers on the bus included a primary school aged child.

Lord Brodie and Sheriff Principal Stephen QC heard that the appellant pled guilty at Dundee Sheriff Court to a charge that on a specified date, on the upper deck of a public service vehicle travelling between two addresses in Dundee, he and a named co-accused did commit an offence of public indecency in that they did engage in oral sex.

The appeal was limited to a challenge to the sheriff’s decision to make the appellant subject to the registration requirements of the 2003 Act.

In terms of section 80 a person is subject to the notification requirements of the relevant part of the Act, if he is convicted of one of a number of offences listed in schedule 3.

Among the offences listed in schedule 3 at paragraph 41A is that of public indecency, but it is subject to two requirements: first, that a person other than the offender be involved in the offence who is under the age of 18; and secondly, that the court determine that there was a significant sexual aspect to the offender’s behaviour in committing the offence.

The submission on behalf of the appellant concentrated on the two requirements in addition to conviction of the offence of public indecency: the sexual aspect and the involvement of a person under 18.

It was accepted that the sexual aspect was present and the sheriff was entitled to so find, but the submission was that on the facts available to the sheriff it could not be said that a person under the age of 18 was involved.

In his report the sheriff explained that he viewed CCTV footage which showed the appellant and his co-accused engaged on the back seat in the upper deck of a double-decker bus in the way described in the charge to which the appellant pled guilty.

The only finding by the sheriff as to the involvement of a person under the age 18 was that: “There were passengers on this deck including a primary school aged child accompanying an adult.”

It was submitted on behalf of the appellant that the presence of such a child did not amount to the necessary involvement which paragraph 41A of schedule 3 required.

However, the judges said they were “unable to accept that submission.

Delivering the opinion of the court, Lord Brodie said: “What is concerned here is an offence of public indecency and in our opinion where that is the offence there is sufficient involvement of members of the public, including those under the age of 18, that they are present and therefore exposed, or potentially exposed, to the act of indecency in a public place which is being perpetrated.

“Involvement does not require anything further where the essence of the offence is exhibitionist behaviour with a sexual aspect. Accordingly the appeal is refused.”

© Scottish Legal News Ltd 2021