At the time, Sheriff Drummond deferred sentence for background reports and placed Mr Marshall on the sex offenders’ register for five years. He seems now to have decided that this was unnecessary: according to the BBC News website, he ruled yesterday that there was not a significant sexual aspect to the case, and so
It seems rather odd to say that there is not a significant sexual aspect involved in simulating sex. (Perhaps not, though: actors and actresses interviewed about filming sex scenes invariably remark about how non-sexual they are. Unless you’re Jonathan Rhys Meyers, who when asked about The Tudors (click here and scroll down), somehow stumbled into saying “But when you’ve worked with somebody like I’ve worked with Natalie Dormer for a second season and then you’re kind of like doing a sex scene, you know each other so well, it’s like a sex scene with your sister…”)
But why is this even the relevant question? Isn’t public indecency – the offence to which Mr Marshall pled guilty - by definition a sexual offence in terms of the sex offenders’ register? The answer to that question is not apparent on the face of the legislation. In
The question asked by Sheriff Drummond is relevant under paragraph 60 but not under paragraph 42. So, which does Mr Marshall’s case fall under? Does “shameless indecency” include “public indecency”? This apparent ambiguity arises because the 2003 Act was passed before the appeal court judicially abolished the crime of shameless indecency and replaced it with the (supposedly) narrower crime of public indecency (Webster v Dominick 2005 JC 65).
The ambiguity has, however, been addressed by the appeal court in Nelson v Barbour 2007 SCCR 283, which seems to hold that the reference to “shameless indecency” in the 2003 Act must now be read as “public indecency”. On that basis, Mr Marshall’s case is a paragraph 42 one and any question of a “sexual aspect” was irrelevant. Instead, the correct question was whether someone under 18 was “involved”. (The answer to that question is uncertain. Being a witness is probably enough to be "involved" in a case of public indecency, given that the offence is based on the conduct's potential to offend those witnessing it. The BBC refers to a “young woman” as being one of the witnesses, but does not give her age.)
This analysis may be unfair, based as it is on a news report which does not set out Sheriff Drummond’s reasoning in full. Moreover, dealing with the case in this way seems to have reached a desirable result: it is not clear what good placing Mr Marshall on the sex offenders’ register would have done. But, remembering that Mr Stewart was placed on the register on the basis of the catch-all provision, the question has to be asked: why was it sexual for Mr Stewart to simulate sex but not for Mr Marshall? Is it the bicycle that makes the difference?