Factual and Procedural Background
On 30 July 2003, a search warrant was executed at the Appellant’s home in Sussex, resulting in the seizure of computer equipment and digital media. The Appellant was charged with multiple offences under the Protection of Children Act 1978 and common law, including making, possessing, and distributing indecent photographs of children, taking an indecent photograph of a child, and committing acts of outraging public decency by filming up the skirts of adult women in supermarkets. The Appellant was a practising barrister and was tried in the Crown Court at Canterbury before Her Honour Judge Williams and a jury.
Applications by the Appellant to dismiss certain counts and to sever offences relating to outraging public decency from the indictment were refused. On 27 April 2006, the Appellant was convicted on all counts and sentenced to a total of 3 years and 9 months imprisonment. The Appellant’s initial application for leave to appeal against conviction was refused except on sentence. The full court later granted leave to appeal on three grounds concerning the offence of outraging public decency, joinder of offences, and severance of counts.
Legal Issues Presented
- Whether, on the evidence, the Appellant’s conduct amounted to the commission of an act outraging public decency, given that no one other than the Appellant was shown to be aware of the filming.
- Whether the offences of outraging public decency should have been properly joined with the other counts in the indictment.
- If properly joined, whether the trial judge wrongly exercised her discretion by failing to sever those counts from the others.
Arguments of the Parties
Appellant's Arguments
- The offence of outraging public decency requires that a lewd act must have been actually witnessed by at least one person, and the public element is satisfied if at least one other person witnessed or could have seen the act.
- No one saw the Appellant filming; therefore, no lewd act was observed and no offence was committed.
- The counts of outraging public decency should not have been joined with the other counts because they lacked a common factual origin and sufficient nexus.
- The judge erred in refusing to sever the counts, resulting in severe prejudice as the defences to the different offences were inconsistent.
- The sentence for outraging public decency should not have been consecutive, and the total sentence was excessive considering the Appellant’s ruined career and the proportion of illegal images.
Respondent's Arguments
- The offence is committed if the act was done in public, was lewd, obscene or disgusting to an extent that outrages public decency, and was either seen or capable of being seen by two members of the public present.
- The fact that no one actually saw the filming is immaterial; the act was capable of being seen by others, such as store detectives or passersby.
- Both sets of offences involved the acquisition and retention of images for sexual gratification, providing sufficient nexus for joinder.
- The evidence of filming was admissible to rebut the Appellant’s defence of accidental download of indecent images.
- The total sentence imposed was appropriate given the nature and gravity of the offences.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Mayling [1963] 2 QB 717 |
Established that the act must be committed in public and capable of being seen by at least two persons; actual disgust or annoyance need not be proven. |
Relied upon to confirm the elements of outraging public decency and the "two person" rule regarding visibility of the act. |
| Knuller [1973] AC 435 |
Confirmed continuing existence of the offence of outraging public decency and clarified the requirement of publicity as referring to the place of the offence. |
Used to define the offence’s elements and the purpose of protecting public decency by ensuring acts are committed in public places. |
| Mirehouse v Rennel (1833) 1 Cl & F 527 |
Described the application of common law principles and precedents to new circumstances for uniformity and certainty. |
Guided the court’s approach to applying historic principles to modern contexts. |
| R (Rose) v DPP [2006] EWHC 852 (Admin) |
Held that the offence was not committed without evidence that at least two persons could have seen the act in a public place. |
Rejected the Appellant’s submission that the filming was not public as no one saw it; supported the requirement of capability of being seen by two persons. |
| Watson (1847) 2 Cox CC 446 |
Held that exposure to only one person was insufficient for the offence; the nuisance must be public to the injury or offence of several. |
Supported the principle that the act must be capable of being witnessed by more than one person. |
| Webb (1848) 1 Den 338 |
Held that exposure to one person only was insufficient; indictment must aver exposure in the sight or view of multiple persons. |
Clarified the necessity of the public element involving multiple potential observers. |
| Farell (1862) 9 Cox CC 446 |
Indecent exposure seen by only one person was not an offence; exposure must be capable of being seen by more than one. |
Reinforced the two-person rule regarding the public element. |
| May (1990) 91 Cr App R 157 |
Confirmed that the offence’s public nature can be established if one person saw the act and others might have seen it. |
Applied to support that the public element can be satisfied by capability of being seen by others. |
| Rowley (1992) 94 Cr App R 99 |
Held that the act must be lewd, obscene or disgusting in itself; intention or motive cannot supply lewdness if the act lacks it. |
Clarified the nature of the act element of the offence. |
| Walker [1996] 1 Cr App R 111 |
Confirmed that the act must be done where there is a real possibility that members of the public might witness it. |
Supported the principle that the offence requires a public place where the act can be seen. |
| Choi [1999] EWCA Crim 1279 |
Confirmed that the prosecution must prove the act took place in public, was disgusting, and outraged public decency; actual outrage need not be proven. |
Applied to the facts to affirm the elements and jury's role in determining outrage. |
| Barrell and Wilson (1979) 69 Cr App R 620 |
Test for joinder of offences requiring common factual origin or sufficient nexus. |
Applied to reject the Appellant’s submission that offences should not be joined. |
| Ludlow v Metropolitan Police Commissioner [1971] AC 29 |
Principles regarding sufficient nexus for joinder of offences. |
Used to assess the connection between offences involving child and adult images. |
| Christou [1997] AC 117 |
Factors to consider in severance of counts to avoid prejudice. |
Referenced in submissions regarding severance but the judge’s discretion was upheld. |
Court's Reasoning and Analysis
The court examined the historical and modern principles governing the common law offence of outraging public decency. It confirmed that two essential elements must be proved: (1) the act must be of such a lewd, obscene, or disgusting character as to outrage public decency, and (2) the act must take place in a public place and be capable of being seen by at least two persons actually present, even if they do not actually see it (the "two person rule").
The court acknowledged that all relevant precedent cases involved the act being actually seen by at least one person, but concluded that this was evidential rather than a strict legal requirement. The "two person rule" serves to ensure the public nature of the offence, protecting minimum standards of decency in public spaces. The court accepted that the act need not be literally seen; it could be witnessed by other means such as hearing, though this did not advance the Appellant’s case materially.
Applying these principles, the court held that the filming by the Appellant in a supermarket—a public place accessible to the public—was capable of being seen by others, even though no one actually saw it. This was a question properly left to the jury, who found the Appellant guilty, indicating their conclusion that the act was capable of being seen. The court therefore found no error in the conviction on counts of outraging public decency.
Regarding joinder, the court found sufficient nexus between the offences involving the acquisition and retention of images for sexual gratification to justify joining the counts in one indictment. The trial judge’s discretion in refusing severance was upheld, as the evidence relating to the counts of outraging public decency was relevant to rebut the defence of accidental download, and no improper prejudice was found.
On sentencing, the court agreed that the sentences for outraging public decency being consecutive resulted in an excessive total sentence. The court allowed the appeal on sentence to the extent of making those sentences concurrent, reducing the total sentence to three years.
Holding and Implications
The court DISMISSED the appeal against conviction on the counts of outraging public decency, affirming the elements of the offence and the application of the "two person rule" to the facts. The court UPHELD the joinder of the offences and the trial judge’s refusal to sever the counts.
The court ALLOWED the appeal on sentence to the extent of reducing the total sentence by making the sentences for outraging public decency concurrent rather than consecutive, resulting in an overall sentence of three years imprisonment.
The decision confirms the continuing application of historic common law principles to contemporary contexts, clarifying that the public element of outraging public decency requires only that the act be capable of being seen by two or more persons present, not necessarily that it was actually seen. No new precedent was established beyond the application of existing principles to the facts.