APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon
 HCJAC 108
Appeal No: XJ556/10
OPINION OF THE COURT
delivered by LORD BONOMY
PROCURATOR FISCAL, DUNDEE
Appellant: Keenan, solicitor advocate; Capital Defence Lawyers (for Finlay MacRae, Solicitors, Dundee)
Respondent: Di Emidio AD; Crown Agent
28 October 2010
 The issue raised in this appeal is 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. As the discussion during the hearing developed, counsel concentrated their submissions on the mens rea requirement of the offence of public indecency.
 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.
 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.
 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."
 The complaint contained two charges against the appellant, the first of which was also directed against her male companion, in these terms:
"(1) on 11 July 2009 in North Marketgait at Eastern Cemetery, Arbroath Road Dundee, you (DF), (GD) did commit an offence of public indecency in that you, (DF) did perform oral sex on (GD).
(3) on 11 July 2009 at Arbroath Road, Dundee you, (DF), being a prostitute, did loiter in a public place for the purposes of prostitution; Contrary to the Civic Government (Scotland) Act 1982, section 46(1)(a)."
The appellant pled guilty to charge 3 and was found guilty after trial on charge 1. Her co-accused pled guilty to charge 1 and to a separate statutory charge of soliciting. In explaining his decision in the Stated Case the Sheriff concentrated on the actus reus of the offence and said little about the requisite mens rea. There are no findings in relation thereto. Two statements in his reasoning seem to confirm that for him it was sufficient to establish the commission of an offence of public indecency that such an intimate sexual act, which was obviously indecent if committed in public, had been committed in a public place, that is a place to which the public have access, whether seen by any member of the public or not. In paragraphs 6 and 7 of his reasoning he said:
"6... I also considered that to commit a sex act in the open air in a public graveyard is precisely the type of conduct referred to by Lord Sutherland 'as likely to offend against any reasonable standard of public decency or morals' in the case of Paterson v Lees 1999 SCCR at page 235F.
7... I did not accept, as a submission in law, that members of the public (other than the police officers) must actually see the act being committed. In my opinion the open nature of the locus and the lack of absolute concealment were sufficient public elements to constitute the crime. ..."
If that were correct, it would follow that 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.
 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 learned Sheriff appears initially to have recognised that. Immediately before his reference to the opinion of Lord Sutherland in Paterson v Lees, in paragraph 6 of his reasoning he said, under reference to the opinion of the Lord Justice Clerk (Gill) in Webster v Dominick 2005 JC 65, 2003 SLT 975, 2003 SCCR 525:
"...for the public element of the crime, the test is not whether the conduct occurred in a public place in any technical sense (although in the index complaint it did) but could take place on private premises if it were nonetheless visible to the public. I am bound to accept this statement of the law."
The Sheriff nevertheless proceeded in that paragraph and in the next one to hold that the nature of the locus was sufficient, without having made any findings in fact relevant to the likelihood of the conduct of the appellant and her co-accused being discovered by a member of the public, or as to the attitude of the appellant to the risk of such discovery.
 Mr Keenan for the appellant submitted that there was insufficient evidence to prove the charge, in particular because the evidence led did not demonstrate a sufficient public element to the behaviour to amount to public indecency. The cemetery was an enclosed area, albeit one to which the public had access. The couple had gone into the depths of the cemetery to a point where they were not immediately obvious and had had to be searched for. The only persons observing were members of the police anti-vice patrol, who had required to seek the couple out because they were screened to a degree by shrubs and bushes. The sheriff had fallen into error in his assessment of the sufficiency of the evidence by considering that it was sufficient that anyone visiting the cemetery "could have chanced upon them".
 Mr Keenan accepted that it was not necessary that members of the public - and "public" in that context did not include the anti-vice police - should actually see the act. In his submission it would be sufficient that the act was committed with a deliberate intention that it should be seen by members of the public, as in the case of indecent exposure, or alternatively in circumstances demonstrating reckless indifference to whether the conduct might be observed, for example sexual activity in a children's play park. The source of that mens rea test for the offence was to be found in Usai v Russell 2000 JC 144, 2000 SCCR 57.
 The Advocate depute in reply did not suggest that no question of mens rea arose beyond the deliberate nature of the appellant's conduct. He proceeded on the basis that mens rea was required, and defined it in terms very similar to those submitted by Mr Keenan, namely a deliberate intention to be seen and to cause offence, or a reckless disregard of the risk of being seen and causing offence. However, the Advocate depute sought to distinguish between conduct in a public place and conduct on private property which was visible to the public. He submitted that in the case of the former little more than the simple fact of the conduct occurring would be required to justify inferring that it was done with the necessary mens rea.
 We do not accept that there is any distinction in principle between events occurring in a public place and events occurring on private property which are visible to the public. It is easy to envisage private land, such as a farmer's field adjacent to a main road, where conduct of a nature that would cause offence to passing members of the public passing would be far more readily visible than conduct in the heart of public woodland. That illustrates that in all cases it is a question of circumstances. Indeed that is made clear more than once in the opinion of the Lord Justice Clerk in Webster v Dominick. At paragraph , under reference to the opinion of the Lord Justice Clerk (Inglis) in McKenzie v Whyte (1864) 4 Irv 570, he said:
"This analysis indicates that the crime of indecent exposure did not depend on technical distinctions between public and private places, but on the public quality of the conduct, namely exposure to the public at large even where the locus was technically a private place."
At paragraph , after referring to the styles of complaint in Schedule C of the Summary Jurisdiction (Scotland) Act 1908, he said:
"This form of charge indicates that, in line with McKenzie v Whyte, the essence of the crime was not that it was committed in a public place but that it was done publicly in the sense that the lieges were present."
Then at paragraph  he included among his final conclusions the following:
"As to the public element of the crime, the test, in my view, is not whether the conduct occurs in a public place in any technical sense. Conduct falling within the definition could take place on a private occasion if it occurred in the presence of unwilling witnesses or if it occurred on private premises but was nonetheless visible to the public."
Among the authorities referred to in support of that proposition was Usai v Russell. It is thus clear that whether an act is one of "public" indecency is a question dependent on the full circumstances in which it occurred, no matter whether the locus was a public place or a private one on which conduct was easily visible to members of the public.
 The more difficult question is to identify the test to apply to those circumstances to determine whether the conduct was committed in public. That question is not analysed in detail in Webster v Dominick. The foregoing quotation from paragraph  of the Lord Justice Clerk's opinion suggests that some members of the public must see the act committed. Indeed he went on to say in the next paragraph:
" I do not accept the submission of the Advocate-depute that indecent conduct committed in private can be criminal merely because the conduct would cause offence to certain people if they were to hear about it. ..."
It could be argued that the absence of any reference to a specific mens rea requirement, combined with the notion that the conduct must be seen and must actually cause offence, suggest that the very fact that a deliberate act, which causes offence to one or more members of the public, takes place is sufficient to constitute the crime. The problem with that analysis is that it would be liable to render criminal conduct which the parties involved had good reason to think was being carried on in private. That might occur should, by some mischance, the conduct be seen by persons who might reasonably be described as "the public". It may simply be the case that the Lord Justice Clerk intended to do no more than reflect the reality that the conduct has to be seen, and thus reported, before it can become the subject of criminal proceedings. Since the submissions before us did not address the question whether the conduct must be viewed by members of the public (other than police officers in the course of their duty), we reserve our opinion on that, and confine our attention to the question of the mens rea requirement for the offence of public indecency.
 In our opinion, before an accused can be guilty of committing an offence of public indecency, the circumstances must demonstrate that he acted in a certain mental state in regard to the risk of being seen so acting by members of the public. We have reached that conclusion following consideration of the authorities referred to in Webster v Dominick, in particular the circumstances of, and the opinions expressed in, McKenzie v Whyte and Usai v Russell. The matter is addressed and the test set out most clearly in Usai v Russell. There the charges against the accused were of public indecency (at that time shameless indecency) by standing naked at a window staring towards a woman, and in two of the three charges fondling his private member. The accused appealed on the ground that there was no finding that he had exposed himself deliberately to any person. The court held that proof of actual knowledge that some other person was in fact witnessing the indecent exposure was not an essential ingredient of a charge of this kind, that the necessary mens rea could be inferred in circumstances where the accused person was in fact observed behaving as the accused in that case did behave, where the likelihood was that persons would observe what was being done, and where he was recklessly indifferent as to whether or not he was observed. In delivering the opinion of the court Lord McCluskey said at 64D-E:
"We are satisfied that proof of actual knowledge that some other person is in fact witnessing the indecent exposure is not an essential ingredient in a charge of this kind. If it were, a person who donned a blindfold and put thick wax into his ears would be able to claim that he was in fact ignorant as to whether or not there were any to witness his sexual displays on to the street from his illuminated windows. In our view, the men rea necessary for committing the crime of shameless indecency can be properly inferred in circumstances where the accused person was in fact observed behaving as the appellant did behave, where the likelihood was that there would be persons who would observe what was being done and when the appellant was recklessly indifferent as to whether or not he was observed."
 In our opinion that test applies to allegations of committing acts of public indecency in general and is not confined to cases of indecent exposure. Indeed cases of public indecency are often cases where the perpetrator intends that his conduct should be seen. However, even then the risk of discovery and the accused's attitude to such risk will fall to be considered.
 In the present case we can say that by selecting the locus that they did it is clear that the appellant and her co-accused did not intend that their activity should be observed by members of the public. However it does not follow automatically from the fact that they were discovered by two police officers that the appellant was reckless as to whether they might be observed by members of the public. We are not in a position to say how likely it was that visitors would be around the part of the graveyard where the conduct occurred at 8.30 pm on a summer evening. We are also in no position to assess the degree of care exercised by the appellant in selecting the locus. In these circumstances we have reached the conclusion that it is not possible to determine from the findings in fact or from the narrative of the evidence in the Stated Case what the likelihood of discovery was and what attitude the appellant herself had taken to any risk of discovery.
 The assessment of the likelihood of discovery and the attitude of an accused to any risk of discovery need not be a complex matter. The question for the Sheriff was what inferences could be drawn in relation to both from an objective assessment of the evidence presented. The sheriff did not make such an assessment and did not identify in the Stated Case the particular evidence on the basis of which an inference might be drawn that the test was met. Since we cannot identify a clear basis for saying that the evidence was sufficient to meet that test we shall, with some hesitation, answer the first question, in relation to sufficiency and the submission of no case to answer in terms of section 160 of the Criminal Procedure (Scotland) Act 1995, in the negative. We can however, with confidence, answer the second question, whether the sheriff was entitled to convict the accused, also in the negative. The appeal is accordingly allowed.