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!

Burns' ghoulish verse...

Gloomy winter still sits on the shoulder of the 25th of January, I concede. Its darkness is heavy, clouds oppress and the keening wind all too often lobs icy handfuls of sleet at the weather-waylaid Scottish traveller. However, it always struck me as a bit of a pity that Robert Burns' Tam o' Shanter probably receives its most concerted airing in the course of an evening dedicated to the convivial, the bibulous and the merry twinkle of good-natured, candle-lit flyting. There is much in it to appeal to the Burns Night audience. Comic, amazingly characterful pen-portraits, a stoating, stocious first verse - but the rose-nosed whisky delivery, wheezing fun, tends to underplay the other side of Tam o' Shanter - its ghoulishness, the acute dread of the piece that takes us from a warm, sociable atmosphere to the terrors of isolation, of being pursued, of panic and the cold clamminess of the uncanny. Indeed much of the horror is owed precisely to the poem's shifting mood. Burns' sketches the cosy, sociable warmth of Tam's watering-hole in Ayr - a place of comfort, a settled space of friendliness and humour, pint after pint inuring those sheltered within to the growing darkness outside and the screeching of the wind. 

All are very much at their ease, but even here Burns adds little notes of uneasy anticipation - recollecting how Tam's choleric beldame Kate prophesied that he'd find himself "catch'd wi' warlocks in the mirk, By Alloway's auld, haunted kirk." Supernatural theme so casually introduced, Tam continues to mine his cups, while the narrator hints at the uncanny forces moving in the murk, little imagined by the hiccuping Tam as he clumsily hoists himself onto his mare to toddle home. Unmerited confidence found at the bottom of a pint and sing-songing to himself for company soon gives way to the growing anxieties of isolation, the ominousness of the lonely road, the battering rain and the foreboding ghosts of panic and dread. The whole scene is classically familiar from the horror genre and Burns manages to humorously combine that drunken ambivalence of confidence and fear, of familiar places transformed into paranoid settings, of control and the whimsical giving in to curiosity. In your lives, I'm sure many of you have shared that transcendent sense, having drunk too greedily, of being able to quite rationally identify your own drunkenness and yet not quite able to walk in the dignified straight line you intended, of clear consciousness of your own befuddled vulnerability as you track a wending way home in the dark. 

Despite his worries, despite his faltering grip on himself, despite the ill-favoured night, Tam cannot resist inching towards the witchlight in Alloway Kirk - and what a sepulchral scene of unearthly malignancy he finds - a ghastly, ghoulish array, pregnant with sublime terror. Burns draws two taut strings of horror tight here - desire and fear - attraction and repulsion - with his hideous depiction of reels over the breathless wrecks of men and the bodies of babes, dark hornpiping Satan and the mad whirling dance, burst coffins and the waxy dead, brandishing gleaming tallow. Enthusiasm overwhelming his voyeurism, Tam cries his defining cry in a verse that ventures into the pure stuff of horror, with the sudden deadening of the lamps.

A number of folk recorded the poem as part of BBC Scotland's worthy Burns Project. Some readers delivered it with overriding irony and only a mirthful gulp of fear. For me, both Simon Tait and Ian McDairmid's versions capture the more nuanced dimensions of the piece, performed with a more horrid Halloween sensibility, managing to capture the poem's ambivalent atmosphere. Its comedy, certainly, but without obliterating the vulnerable existential position of poor haunted Tam, alone, boozed up, lusty, shivering in the dark...

Tam o' Shanter

When chapman billies leave the street,

And drouthy neibors, neibors, meet;

As market days are wearing late,

And folk begin to tak the gate,

While we sit bousing at the nappy,

An' getting fou and unco happy,

We think na on the lang Scots miles,

The mosses, waters, slaps and stiles,

That lie between us and our hame,

Where sits our sulky, sullen dame,

Gathering her brows like gathering storm,

Nursing her wrath to keep it warm.

This truth fand honest Tam o' Shanter,

As he frae Ayr ae night did canter:

(Auld Ayr, wham ne'er a town surpasses,

For honest men and bonie lasses).

O Tam! had'st thou but been sae wise,

As taen thy ain wife Kate's advice!

She tauld thee weel thou was a skellum,

A blethering, blustering, drunken blellum;

That frae November till October,

Ae market-day thou was na sober;

That ilka melder wi' the Miller,

Thou sat as lang as thou had siller;

That ev'ry naig was ca'd a shoe on

The Smith and thee gat roarin' fou on;

That at the Lord's house, ev'n on Sunday,

Thou drank wi' Kirkton Jean till Monday,

She prophesied that late or soon,

Thou wad be found, deep drown'd in Doon,

Or catch'd wi' warlocks in the mirk,

By Alloway's auld, haunted kirk.

Ah, gentle dames! it gars me greet,

To think how mony counsels sweet,

How mony lengthen'd, sage advices,

The husband frae the wife despises!

But to our tale: Ae market night,

Tam had got planted unco right,

Fast by an ingle, bleezing finely,

Wi reaming swats, that drank divinely;

And at his elbow, Souter Johnie,

His ancient, trusty, drougthy crony:

Tam lo'ed him like a very brither;

They had been fou for weeks thegither.

The night drave on wi' sangs an' clatter;

And aye the ale was growing better:

The Landlady and Tam grew gracious,

Wi' favours secret, sweet, and precious:

The Souter tauld his queerest stories;

The Landlord's laugh was ready chorus:

The storm without might rair and rustle,

Tam did na mind the storm a whistle.

Care, mad to see a man sae happy,

E'en drown'd himsel amang the nappy.

As bees flee hame wi' lades o' treasure,

The minutes wing'd their way wi' pleasure:

Kings may be blest, but Tam was glorious,

O'er a' the ills o' life victorious!

But pleasures are like poppies spread,

You seize the flow'r, its bloom is shed;

Or like the snow falls in the river,

A moment white - then melts for ever;

Or like the Borealis race,

That flit ere you can point their place;

Or like the Rainbow's lovely form

Evanishing amid the storm. -

Nae man can tether Time nor Tide,

The hour approaches Tam maun ride;

That hour, o' night's black arch the key-stane,

That dreary hour he mounts his beast in;

And sic a night he taks the road in,

As ne'er poor sinner was abroad in.

The wind blew as 'twad blawn its last;

The rattling showers rose on the blast;

The speedy gleams the darkness swallow'd;

Loud, deep, and lang, the thunder bellow'd:

That night, a child might understand,

The deil had business on his hand.

Weel-mounted on his grey mare, Meg,

A better never lifted leg,

Tam skelpit on thro' dub and mire,

Despising wind, and rain, and fire;

Whiles holding fast his gude blue bonnet,

Whiles crooning o'er some auld Scots sonnet,

Whiles glow'rin round wi' prudent cares,

Lest bogles catch him unawares;

Kirk-Alloway was drawing nigh,

Where ghaists and houlets nightly cry.

By this time he was cross the ford,

Where in the snaw the chapman smoor'd;

And past the birks and meikle stane,

Where drunken Charlie brak's neck-bane;

And thro' the whins, and by the cairn,

Where hunters fand the murder'd bairn;

And near the thorn, aboon the well,

Where Mungo's mither hang'd hersel'.

Before him Doon pours all his floods,

The doubling storm roars thro' the woods,

The lightnings flash from pole to pole,

Near and more near the thunders roll,

When, glimmering thro' the groaning trees,

Kirk-Alloway seem'd in a bleeze,

Thro' ilka bore the beams were glancing,

And loud resounded mirth and dancing.

Inspiring bold John Barleycorn!

What dangers thou canst make us scorn!

Wi' tippenny, we fear nae evil;

Wi' usquabae, we'll face the devil!

The swats sae ream'd in Tammie's noddle,

Fair play, he car'd na deils a boddle,

But Maggie stood, right sair astonish'd,

Till, by the heel and hand admonish'd,

She ventur'd forward on the light;

And, wow! Tam saw an unco sight!

Warlocks and witches in a dance:

Nae cotillon, brent new frae France,

But hornpipes, jigs, strathspeys, and reels,

Put life and mettle in their heels.

A winnock-bunker in the east,

There sat auld Nick, in shape o' beast;

A towzie tyke, black, grim, and large,

To gie them music was his charge:

He screw'd the pipes and gart them skirl,

Till roof and rafters a' did dirl. -

Coffins stood round, like open presses,

That shaw'd the Dead in their last dresses;

And (by some devilish cantraip sleight)

Each in its cauld hand held a light.

By which heroic Tam was able

To note upon the haly table,

A murderer's banes, in gibbet-airns;

Twa span-lang, wee, unchristened bairns;

A thief, new-cutted frae a rape,

Wi' his last gasp his gab did gape;

Five tomahawks, wi' blude red-rusted:

Five scimitars, wi' murder crusted;

A garter which a babe had strangled:

A knife, a father's throat had mangled.

Whom his ain son of life bereft,

The grey-hairs yet stack to the heft;

Wi' mair of horrible and awfu',

Which even to name wad be unlawfu'.

Three lawyers tongues, turned inside oot,

Wi' lies, seamed like a beggars clout,

Three priests hearts, rotten, black as muck,

Lay stinkin, vile in every neuk.

As Tammie glowr'd, amaz'd, and curious,

The mirth and fun grew fast and furious;

The Piper loud and louder blew,

The dancers quick and quicker flew,

They reel'd, they set, they cross'd, they cleekit,

Till ilka carlin swat and reekit,

And coost her duddies to the wark,

And linkit at it in her sark!

Now Tam, O Tam! had they been queans,

A' plump and strapping in their teens!

Their sarks, instead o' creeshie flainen,

Been snaw-white seventeen hunder linen!-

Thir breeks o' mine, my only pair,

That ance were plush o' guid blue hair,

I wad hae gien them off my hurdies,

For ae blink o' the bonie burdies!

But wither'd beldams, auld and droll,

Rigwoodie hags wad spean a foal,

Louping an' flinging on a crummock.

I wonder did na turn thy stomach.

But Tam kent what was what fu' brawlie:

There was ae winsome wench and waulie

That night enlisted in the core,

Lang after ken'd on Carrick shore;

(For mony a beast to dead she shot,

And perish'd mony a bonie boat,

And shook baith meikle corn and bear,

And kept the country-side in fear);

Her cutty sark, o' Paisley harn,

That while a lassie she had worn,

In longitude tho' sorely scanty,

It was her best, and she was vauntie.

Ah! little ken'd thy reverend grannie,

That sark she coft for her wee Nannie,

Wi twa pund Scots ('twas a' her riches),

Wad ever grac'd a dance of witches!

But here my Muse her wing maun cour,

Sic flights are far beyond her power;

To sing how Nannie lap and flang,

(A souple jade she was and strang),

And how Tam stood, like ane bewithc'd,

And thought his very een enrich'd:

Even Satan glowr'd, and fidg'd fu' fain,

And hotch'd and blew wi' might and main:

Till first ae caper, syne anither,

Tam tint his reason a thegither,

And roars out, "Weel done, Cutty-sark!"

And in an instant all was dark:

And scarcely had he Maggie rallied.

When out the hellish legion sallied.

As bees bizz out wi' angry fyke,

When plundering herds assail their byke;

As open pussie's mortal foes,

When, pop! she starts before their nose;

As eager runs the market-crowd,

When "Catch the thief!" resounds aloud;

So Maggie runs, the witches follow,

Wi' mony an eldritch skreich and hollow.

Ah, Tam! Ah, Tam! thou'll get thy fairin!

In hell, they'll roast thee like a herrin!

In vain thy Kate awaits thy comin!

Kate soon will be a woefu' woman!

Now, do thy speedy-utmost, Meg,

And win the key-stone o' the brig;

There, at them thou thy tail may toss,

A running stream they dare na cross.

But ere the keystane she could make,

The fient a tail she had to shake!

For Nannie, far before the rest,

Hard upon noble Maggie prest,

And flew at Tam wi' furious ettle;

But little wist she Maggie's mettle!

Ae spring brought off her master hale,

But left behind her ain grey tail:

The carlin claught her by the rump,

And left poor Maggie scarce a stump.

Now, wha this tale o' truth shall read,

Ilk man and mother's son, take heed:

Whene'er to Drink you are inclin'd,

Or Cutty-sarks rin in your mind,

Think ye may buy the joys o'er dear;

Remember Tam o' Shanter's mare.