PF v Garry McNair 2015

Mr McNair failed in his appeal not to be placed on the Sex Offenders Register. Mr McNair pled guilty at Dundee Sheriff Court to the charge of public indecency after he had an oral sex act performed on him on a public bus. He was sentenced to five months imprisonment and placed on the sex offenders register.

A person can be made subject to the notification requirement in relation to a public indecency offence if two conditions are met the statute provides. One of the conditions is that a person under 18 is involved and the second is that there needs to be significant sexual element of the behaviour. The appellant argued that the sheriff has erred because it could not be said that anyone under 18 was involved in the act. The co-accused and person who performed the sex act was an adult. Therefore, he argued the first condition was not met.

However, it was accepted there were children present on the bus. The sheriff had noted that the CCTV has been viewed and primary school aged children were passengers. The appellant argued this would not be enough to satisfy the test by the Criminal Appeal Court did not agree stating: “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.” The appeal was therefore refused.