England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		16th March 2006

1. MR JUSTICE STANLEY BURNTON: This is an appeal by way of case stated from a decision of Deputy District Judge Pascoe made on 5 October 2005 in which he found the appellant guilty of committing an act outraging public decency by behaving in an indecent manner, contrary to common law. That act was alleged to have taken place on 2 February 2005.
2. The case stated sets out the facts which are necessary for the court to determine the question of law raised by the case stated. The facts, which were said not to be in dispute, were as follows.

"(i) Up to and including 2 February 2005 access to the foyer of the Lloyds TSB University branch in Glossop Road, Sheffield was available to the general public using a swipe card to have the use of the ATM machines situate therein.

(ii) The said foyer was well lit and passers-by would be able to see in to the foyer had they chosen to look.

(iii) The interior of the foyer was the subject of 24-hours CCTV surveillance."

3. The case continues by stating that the Deputy District Judge heard evidence from a Mrs Helen O'Rourke, who was the manageress of the Lloyds TSB University branch in question. The statement of facts continues:

"(ii) It was part of her duty, upon attending work, to view the coverage of the foyer provided by the CCTV during the hours between the closing of the branch (save for the foyer) and the re-opening of the branch the day following.

(iii) In doing so, she stated that she observed on the CCTV coverage of the foyer for the early hours of 2 February 2005 a man who she identified as the appellant sat in the foyer with his back to the counter. The man's penis was exposed and erect and a female (identified as his girlfriend) was performing an act of oral sex upon him. She noted the time on the CCTV as 00:54"

that is to say, six minutes to 1:00 in the morning.

4. The Deputy District Judge said that he had not viewed the CCTV film himself but he had been shown stills, which showed the incident and the date and time. He referred to the fact that at his interview on 12 March 2005 the appellant admitted that "We" (that is to say, he and the lady who was with him, his girlfriend) "just forgot about the camera."
5. The appellant did not dispute the factual basis of the allegation and chose not to give evidence. The Deputy District Judge was not asked to find nor did he make any adverse inference against him by virtue of that decision.
6. The contentions on behalf of the appellant were that the act complained of could not have outraged public decency. There was no evidence of intention to insult and annoy and that the act of oral sex had not actually been witnessed at the time that it was being committed, and, therefore, the constituent ingredients of the offence had not been made out.
7. A number of authorities were referred to, including the cases of R. v. Walker (1996) 1 Cr.App.R. 111 and R. v. Shorrock [1994] 2 QB 279.
8. The Deputy District Judge states that he was of the following opinion.

"(i) That the act of oral sex was of such a lewd, obscene and disgusting nature as to constitute an outrage of public decency.

(ii) Although the appellant acknowledged in his Police interview that he had forgotten about the camera on this occasion, he did not deny knowledge of the existence of the camera or the possibility that his actions could have been seen by people passing by, and, as such, adopting the test of mens rea in the case of R. v. Shorrock, I was of the opinion that the appellant knew or ought to have known that, as a result of his action, a public nuisance would be committed.

(3) Although the respondent conceded that no member of the public had actually witnessed the commission of the act of oral sex at the time it was being committed, the witnessing of the event by Mrs O'Rourke in the course of her employment was a sufficient witnessing of the act to satisfy the requirements of the offence and that the value and importance of video and CCTV evidence was an important evidential tool in our criminal justice system."

The question stated for the opinion of the High Court is:

"Was I correct in finding that the witnessing of an event captured on CCTV by a person acting in the course of her employment is sufficient to satisfy the requirements of the offence of outraging the public decency?"

9. The appeal, on analysis, raises three issues. It is not in contention that an act such as that performed by the appellant and his girlfriend, while it may be regarded as perfectly decent if carried out in private, is not so if carried out in public. What is meant by "in public" I shall in a moment address.
10. Nor is it submitted that if the facts constituting the offence were proven in this case there was any lack of the necessary mens rea on the part of the appellant. The question that has been raised is as to whether the public constituent of the offence was proved in this case. As I stated above, there are so far as that matter is concerned three real issues. The first is this. Is it sufficient to prove the offence that it is shown that only one person other than the participants in the act saw the act in question?
11. It is submitted that the essence of the offence is that there should be some sort of public injury and that the viewing of the act by one person does not satisfy that requirement. It is important to stress that although the Deputy District Judge found that passers-by might have witnessed what occurred in the foyer of the bank there is no finding that at almost 1:00 o'clock in the morning there were in fact any passers-by. Nor was there evidence of anyone seeking to enter the bank or entering the bank at the time that the offence was said to be committed.
12. The second and third issues are linked. If the only witnessing of the act is on a private CCTV system subsequently, is that a sufficient public element for the offence to be proved? The third issue, which is linked to the second issue is, for these purposes, whether the bank manager, whose private duty it was to view the CCTV and who saw it in private, a member of the public for these purposes?
13. In order to consider the first element and the first issue it may be assumed that the second and third issues could be decided in favour of the respondent, that is to say, the Prosecution. Is the viewing of an indecent act by one member of the public sufficient to constitute this offence?
14. It is important to bear in mind that the offence which was charged was a common law offence. It was not a statutory offence, such as the offence created by the Vagrancy Act of indecent exposure or an offence under the Sexual Offences Act 2003. The nineteenth century authorities on this common law offence are therefore relevant.
15. The first of the trio of nineteenth century authorities on the first issue is the case of R v Watson (1847) 2 Cox CC 446. The headnote reads:

"Indecent exposure. An indictment charging the defendant with having indecently exposed himself in a certain public and open place in the presence of one person only, cannot be sustained, whether that person be a female or not."

16. The indictment in that case was against the defendant for indecent exposure. The first count was one of indecent exposure in the sight and view of one named individual female and the second count charged the offence as having been committed "in the presence of divers persons". The report states:

"It appeared from the evidence during the trial that the indecent exposure had been in the presence [of the named female] alone, as alleged in the first count. The defendant was therefore found guilty upon the first count, and not guilty upon the second. A rule nisi had been obtained in arrest of judgment, against which [counsel] shewed cause."

Lord Denman, Chief Justice, said:

"The general rule is, that a nuisance must be public; that is, to the injury or offence of several. There is no precedent of such an indictment as the present, and we are not inclined to make one."

The rule was made absolute. In other words, at common law, indecent exposure to one member of the public was not a criminal offence. The offence there was alleged to have taken place, be it noted, in:

"a certain open and public place there situate, called Paddington Churchyard."

17. Clearly there was no evidence in that case that anyone other than the named female was in the vicinity at the time of the lewd act and able to see it. In those circumstances, although the act occurred in a place which was clearly public, there was no criminal offence.
18. The decision in Watson was followed by the Court for Crown Cases Reserved in 1848 in R v Webb (1848) 3 Cox CC 183. The headnote reads:

"An indictment for a nuisance at common law charged that the defendant, at, etc, in, etc...did expose and exhibit his private parts, naked and uncovered, in the presence of MA, the wife of C, and of divers others of the liege subjects, etc. The evidence was, that the defendant took out and exposed his private parts to MA, and thereupon she directly ran off and told her husband: that there was no one in sight but herself when she saw his private parts exposed. The defendant was convicted.

Held, that as the exposure to one person only was not an offence at common law, the words of 'divers others of the liege subjects' etc were material to be proved; and that as they had not been proved, the conviction ought to be quashed."

Chief Baron Pollock said this:

"I think that this case is governed by that of R. v. Watson. There, on proof that the act was done in the presence of but one person, the defendant was acquitted on the second count, and subsequently judgment was arrested on the first count, which stated the act to have been done in the presence of but one person. Now, in this case, the evidence shows that but one person was present when the act that would sustain an indictment was committed. Striking out then from the indictment all that relates to the other persons, which, as the evidence shows, ought not to have been in the indictment, the indictment would become one upon which, on the authority of R. v. Watson (a case in which I fully concur), we ought to arrest the judgment. The matter which distinguishes this indictment from R. v. Watson has not been proved: the evidence then is only sufficient to sustain such an indictment as that in R. v. Watson; and, therefore, a conviction not to have taken place."

19. The report I have just referred to of Webb is in Criminal Law Cases for 1848 at page 183. There is another report of the decision in (1848) 2 Car & Kir 933, which records Baron Parke as saying this:

"Whether the indictment is good or not is not the question. I think it may be good. I am disposed to think it is a good indictment; but, if we strike out of it what is not proved, it only charges an exposure to one person, which has never been held to be an indictable offence; and in R. v. Watson it was held that it was not so."

Vaughan Williams J. agreed, on authority of Watson, that the conviction was wrong. Patteson J. said:

"I entirely adhere to the case of R. v. Watson."

20. In the course of argument, Baron Parke referred to a case he had tried, Rex. v. Rouverard, at York in 1830, an indictment against a French master (although I do not think his nationality was a constituent of the offence):

"for exposing his person at a window in Micklegate, York, to excite a girl who was a servant on the second floor of the house on the opposite side of the street."

Baron Parke said:

"I left it to the jury to say whether those in the street could have seen him or not (not whether they did see him); and that, if they could have seen him, it was a nuisance."

21. I understand from that reference that there were in fact persons in the street who might have been able to see the exposure of the person of the defendant, and the jury was given to decide the issue whether those people who were in the street could have seen him.
22. Turning to Farrell (1862) 9 Cox CC 446, this was a case, decided by the Irish Court of Criminal Appeal, in which the indecent exposure which was charged had taken place on a highway, indubitably in a public place, or, if not on the highway, certainly near it and in full view of it. The headnote reads:

"An indecent exposure seen by one person only, and capable of being seen by one person only, is not an offence at common law. Secus, if there are other persons in such a situation as that they may be witnesses of the exposure."

23. The facts, apparently, were that on the 27th September in 1862 a police officer:

"saw the prisoner expose his person on a piece of ground near the road, he being turned so that people passing on the road could see, but there being no person on the road. This was repeated, there being then, also, no person on the road. On a third occasion, on the same day, he did the same, there being then two females coming up the road. A woman was also examined, who deposed that on the 25th of September she was in a house adjoining the road, cleaning the parlour, when she saw the prisoner commit the offence, in the piece of ground spoken of by the first witness. She also deposed that she saw him commit the offence on the 27th September."

24. The prisoner having been convicted, Chief Justice Monaghan said:

"We must quash the conviction; but it is not to be taken that we lay it down that if the prisoner was seen by but one person, but there was evidence that others might have witnessed the offence at the time, we would not uphold the conviction; but in this case there is no evidence that anyone could have seen the prisoner commit the offence on the 24th September, except the one female. Therefore, all that we say is, that an exposure seen by one person only, and being capable of being seen by one person only, is not an offence at common law. If there had been others in such a situation as that they could have seen the prisoner, there would have been a criminal offence."

25. It seems to me that the nineteenth century cases are consistent authority for the proposition that if in fact only one person did see or could have seen the act complained of, there was no and is no common law offence.
26. Those cases were referred to by the Court of Criminal Appeal in R. v. Mayling [1963] 2 QB 717. That was a case of indecency in a public toilet. One man had entered the toilet and left. Two police officers went in and saw the acts said to constitute the indecent acts. Because two officers had seen it, it was held that the offence was made out. Watson, Webb and Farrell were referred to and followed.
27. The present case is not complicated, as I have already stated, by any suggestion that there was evidence that there were other passers-by in the street at the time who could have seen what happened or who came into the foyer, or tried to come into the foyer to see what had happened.
28. There is no common law offence, clearly, if persons commit an act of the kind that was committed in the present case but it is not seem by anyone who is not participating in it. The only evidence of anyone seeing this act was of one person seeing it, and, on the authorities to which I have referred, that is not a sufficient public element for the offence to be established.
29. That decides the first issue to which I have referred. It remains to say something about the second and third issues. So far as they are concerned it is unnecessary in order to dispose of this appeal to decide them. There is, I think, considerable force in Mr Weatherby's submission that the viewing privately of a private recording of an act which had not previously been seen by any person is insufficient to constitute the offence. That is because the offence is committed when it is committed. It would be curious if the offence was completed by a private viewing of a recording and if it could make a difference, for example, as to whether the bank manageress was in the company of somebody else when she saw the video or not, or whether she showed it to someone else afterwards or not.
30. However, those issues do not have to be decided for present purposes; nor does the issue whether her viewing in carrying out her duty of the CCTV recording was sufficient for the purpose of the offence.
31. In those circumstances, the answer to the question for the opinion of the High Court is no. I emphasise that there was only one person acting in the course of her employment who viewed the CCTV. For the reasons I have given, the appeal will be allowed and the conviction quashed.
32. MR WEATHERBY: I am obliged. My Lord, I am publicly funded. I think I need to ask for a detailed assessment.
33. MR JUSTICE STANLEY BURNTON: You may certainly have it.
34. MR WEATHERBY: I am most obliged.
35. MT JUSTICE STANLEY BURNTON: Thank you both for your help.