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Attorney(S)
- MR P. WEATHERBY (instructed by Howells, Sheffield) appeared on behalf of THE APPELLANT
- MS S. KARIM (instructed by the Crown Prosecution Service, Sheffield) appeared on behalf of THE DEFENDANT
Judges
- MR JUSTICE STANLEY BURNTON
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Rose, R (on the application of) v. Director of Public Prosecutions
Smart Summary
Factual and Procedural Background
This opinion concerns an appeal by way of case stated from a decision of Deputy District Judge Pascoe, dated 5 October 2005, in which the Appellant was found guilty of committing an act outraging public decency by behaving indecently on 2 February 2005. The incident occurred in the foyer of a bank branch in a city, which was accessible to the public via swipe card for ATM use, well lit, and under 24-hour CCTV surveillance.
The Deputy District Judge relied on evidence from the bank manageress, who, as part of her duties, reviewed CCTV footage and observed the Appellant and a female companion engaged in an act of oral sex at approximately 00:54 hours. The Appellant admitted in a police interview that he and the female had "forgotten about the camera." The Appellant did not dispute the factual basis but contested the legal sufficiency of the offence.
Legal Issues Presented
- Whether 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 public decency.
- Whether the offence requires that the act be seen by more than one member of the public to constitute a public nuisance.
- Whether private viewing of a CCTV recording by an employee (the bank manageress) qualifies as public witnessing for the purposes of the offence.
Arguments of the Parties
Appellant's Arguments
- The act alleged could not constitute outraging public decency as there was no evidence of intention to insult or annoy.
- The act of oral sex was not actually witnessed at the time it was being committed.
- The public element of the offence was not established because only one person (the bank manageress) viewed the act on CCTV, and no members of the public actually witnessed it live.
Respondent's Arguments
- The act was lewd, obscene, and disgusting enough to outrage public decency.
- The Appellant had knowledge or ought to have known that his actions could be seen by others, satisfying the mens rea requirement.
- The witnessing of the act by the bank manageress in the course of her employment via CCTV was sufficient to satisfy the public witnessing element of the offence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R. v. Walker (1996) 1 Cr.App.R. 111 |
Referenced in relation to mens rea and public decency offences. |
Used to support the legal principles concerning mens rea and public nuisance elements. |
| R. v. Shorrock [1994] 2 QB 279 |
Mens rea test for knowledge of public nuisance in outraging public decency. |
Applied to conclude the Appellant knew or ought to have known about the public nature of his act. |
| R v Watson (1847) 2 Cox CC 446 |
Indecent exposure to one person only is not a common law offence. |
Key authority establishing that exposure to a single person does not constitute a public nuisance. |
| R v Webb (1848) 3 Cox CC 183 |
Confirmed that exposure to one person only is insufficient for a common law offence. |
Followed Watson to quash conviction where only one witness saw the act. |
| Rex v. Rouverard (1830) |
Exposure deemed nuisance if people in public could have seen the act. |
Distinguished actual witnessing from the potential to be seen by the public. |
| Farrell (1862) 9 Cox CC 446 |
Exposure seen by only one person and capable of being seen by only one person is not an offence. |
Supported the principle that a single witness is insufficient for a public nuisance. |
| R. v. Mayling [1963] 2 QB 717 |
Indecency witnessed by more than one person constitutes the offence. |
Reinforced that multiple witnesses are necessary to establish public element. |
Court's Reasoning and Analysis
The court examined whether the offence of outraging public decency was established by the evidence that only one person, the bank manageress, viewed the act via CCTV. It reviewed nineteenth-century common law authorities, which consistently held that exposure or indecent acts witnessed by only one individual did not constitute a public nuisance. The court emphasized that the offence requires a public element, meaning the act must be to the injury or offence of several people, not just one.
The court acknowledged that although the CCTV footage showed the act, and the Appellant had knowledge of the camera, no evidence demonstrated that any member of the public actually witnessed the act live or that multiple persons could have witnessed it. The private viewing of the CCTV footage by an employee was insufficient to satisfy the public element of the offence. The court declined to decide definitively on whether private viewing of CCTV footage could constitute the offence but found it unnecessary to do so for the disposition of this appeal.
Consequently, the court concluded that the public element of the offence was not proven, and the conviction could not stand.
Holding and Implications
The appeal is allowed and the conviction is quashed.
The direct effect of this decision is the reversal of the Appellant's conviction for outraging public decency. The court clarified that for the common law offence to be established, the act must be witnessed by more than one member of the public or be capable of being witnessed by multiple persons. No new precedent was established beyond affirming existing common law principles regarding the public element of the offence.
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