By Cara Sulieman
A PROSTITUTE who gave a customer oral sex in a cemetery has had her conviction for public indecency quashed because there wasn’t enough evidence to prove she had meant to be caught.
Donna Fearn was originally found guilty of an act of public indecency after a trial at Dundee Sheriff Court.
It came after officers found her with a client in the Eastern Cemetery and Necropolis in Dundee on July 11, 2009.
Officers spotted her speaking to a man before crossing the road and entering the graveyard with him.
The anti-vice cops then went into the cemetery and eventually found the pair carrying out the sex act.
Both Fearn and the man she was with were convicted of public indecency.
But her Solicitor Advocate, John Keenan, successfully argued at the High Court of Appeal in Edinburgh that his client should not have been convicted as she didn’t intend for the sex act to be seen.
Lord Mackay of Drumadoon, Lord Bonomy and Lady Dorrian heard the appeal and overturned the conviction after deciding that there wasn’t enough evidence to prove that the act constituted public indecency.
In the judgement, Lord Bonomy said that the convicting Sheriff’s opinion that the location of the act was enough to make it public indecency was wrong.
He wrote: “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.”
The judges went on to say that the test for public indecency should include the risk of discovery and the accused’s attitude to being caught.
They decided that there wasn’t enough evidence to say how likely it was that Fearn would be seen by members of the public, or what her attitude was towards being caught.
Lord Bonomy said: “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 have reached the conclusion that it is not possible to determine from the findings in fact or from the narrative of the evidence…what the likelihood of discovery was and what attitude the appellant herself had taken to any risk of discovery.”