Scots judges acquit Cutty Sark...

How apt! Yesterday, for Halloween, we followed a shivering Tam o' Shanter into the haunted kirkyard in Alloway and recollected the corpse-lit carnal revelries he encountered there. Today, we survey a similar sepulchral scene, moonlight starkly illuminating the wan faces of the tombstones in the Eastern Necropolis in Dundee. We explore this second setting, not in the raunchy poetry of Robert Burns, but the resolutely sober prose of the Appeal Court of the High Court of Justiciary. In D.F. v. Procurator Fiscal, Dundee, Lord Bonomy along with Lady Dorrian and Lord Mackay of Drumadoon meditated on a decidedly tricky Shanteresque question. Say Alloway's black ceilidh had dispersed, fiddling Auld Nick lay slumbering in a borrowed coffin - and Cutty Sark was in amorous fettle. She acquires a male companion - come back Tam, all is forgiven! - and they repair to the heart of the empty graveyard, seeking some concealing shrubbery... Here I'll defer to Lord Bonomy's assiduous account of the facts of the case:

[2] The issue arose out of events which took place between around 8.10 and 8.30 pm on 11 July 2009. The appellant was seen by two police officers who were on routine anti-vice patrol in Arbroath Road, Dundee. She was walking near the main entrance to the Eastern Cemetery and Necropolis and talking to drivers of motor vehicles. The officers, who believed the appellant to be a prostitute, spoke to her and invited her to move on, which she seemed willing to do. However, about twenty minutes later she was again observed by the same officers on the opposite side of the road engaging in a brief conversation with a man who had alighted from a bus. Together she and the man crossed the road and entered the cemetery through the open gates.

[3] As the Sheriff tells us in the Stated Case:

"The officers considered that they had reasonable grounds to suspect that an illegal act was in commission and they resolved to act."

They split up and entered the cemetery separately, one of them climbing over the wall. Their aim was to detect the possible crime without alerting the suspects. In the course of what could be described as a pincer movement, each of the officers came independently upon the couple on an area of lawn adjacent to headstones, mature bushes and shrubs. The male was lying on the grass on his back with his knees bent and his trousers open. The appellant was on her hands and knees performing an act of oral sex upon him. Both officers found them after having searched other parts of the graveyard.

[4] The Sheriff made two findings of significance in relation to the nature of the cemetery:

"3.The Eastern Cemetery is a large open space enclosed by a curtain wall with an imposing main gate and other side gates. There is a large main or processional roadway through the graveyard with pathways off. The graveyard is planted out with lawns, well established ornamental trees, rhododendron and other bushes or shrubbery.
...
6. That the Eastern Cemetery Dundee is a place to which the public have generally unrestricted access and that an act of oral sex (fellatio) committed in the open graveyard was one of indecency."

Essentially, the court had to decide "whether the sexual conduct in which the appellant had been involved, namely performing oral sex on her male co-accused, was committed "in public" in the sense required to amount to an offence of public indecency. It was accepted that the conduct in question, whilst lawful in private, was an act of indecency if committed in public." Is Dundee's Eastern Necropolis "public"? What mental element, what mens rea, would a potential Cutty Sark have to demonstrate if she was to be guilty of the crime? Alas, the Senators of the College of Justice didn't even consider that the space might be peopled by the peeping spirits of  the restless dead. Lord Bonomy was much more concerned with the Sheriff's approach and, dare I say, manages to sound a little wistful, worrying about an over-expansive definition of public spaces...

[5] ...any intimate sexual activity to which the public ought not to be exposed would constitute the offence of public indecency if it took place in the open air in a place to which the public had free access. In other words, no matter how remote the beach or the glen of, say, a national park, such activity there would constitute the offence of public indecency without anyone seeing it and being offended and without regard to the risk of someone seeing it and being offended.

[6] It is plainly unnecessary and indeed undesirable to criminalise conduct as public indecency when, as a matter of fact, the public are neither offended nor at any realistic risk of being offended. Whether or not conduct in public places, or indeed in private places where it is visible to members of the public, falls within the ambit of the crime of public indecency must depend upon the circumstances in which the conduct occurs.

The Court basically decided that they couldn't work out how likely it was for visitors to promenade through the cemetery "at 8.30 on a summer evening" and in an exceedingly discreet phrase, were equally incapable of properly assessing "the degree of care exercised by the appellant in selecting the locus". The judges accepted, however, that neither individual went out of their way to broadcast their sexual activity to the public common, quick or dead. In the absence of evidence on these central issues, the Court allowed the appeal. Cutty Sark was acquitted. Its worth emphasising that I deplore the subtext of prostitution in this case, despite finding the other facts and circumstances, combined with the dry judicial style, rather amusing. It does at least make a pleasing change from po-faced nonsense from Scots law on naked rambling...

Graveyard doggers of Gothic Scotia, rejoice!