Court of Appeal
| Published date | 01 August 2008 |
| Date | 01 August 2008 |
| DOI | 10.1350/jcla.2008.72.4.268 |
| Subject Matter | Court of Appeal |
Court of Appeal
Outraging Public Decency
R v Hamilton [2007] EWCA Crim 2062
Keywords Outraging public decency; Public element; ‘Two-person’ rule;
Knuller v DPP; Shaw vDPP
The facts presented in this case were lewd and bizarre. The appellant, a
practising barrister, did not deny that he had taken video footage with
a camera so positioned by him that he was able to take footage up the
skirts of a 14-year-old girl and various women who were shopping in
supermarkets. He had done this covertly, by hiding a camera angled
upwards in a bag placed on the floor at check-out queues. In terms of
harm and perpetrated ‘outrage’ no one had seen the filming and the
women involved could not be identified. Hamilton, inter alia, was tried
and convicted before the Crown Court at Canterbury of outraging public
decency contrary to common law. The fundamental ground of the
appeal focused on the constituent elements of the offence. The defence
contended that as no one other than the appellant was shown to have
been aware of what he was doing when he was filming consequently the
‘two-person’ rule was not satisfied. It was argued that a precondition to
liability was at the very least one person seeing (or hearing) the relevant
act.
H
ELD
,
DISMISSING THE APPEAL
, a capability of harm interpretation of
the offence of outraging public decency should be adopted rather than
one that required an actuality of outrage.
C
OMMENTARY
A number of comparisons may be made between outraging public
decency (at common law) and extant conspiracy offences in this regard.
The nature of these latter offences can be illustrated by the House of
Lords decisions in Shaw vDPP [1962] AC 220 and Knuller vDPP [1973]
AC 435. In Shaw v DPP the defendant published a booklet, the Ladies
Directory, of some 28 pages, most of which were taken up with the names
and addresses of prostitutes; the matter published left no doubt that the
advertisers could be got in touch with at the telephone numbers given
and were offering their services for sexual intercourse and, in some
cases, for the practice of sexual perversions. It was determined by their
Lordships, Lord Reid dissenting, that there was an offence at common
law of conspiracy to corrupt public morals. In essence, the offence will
be committed if the jury, upon whom the onus rests to determine on the
facts that the crime has been established, believe that the conduct is
outrageously indecent because it would ‘disgust and annoy them’, and
similarly ordinary citizens whom they embody. Lord Simon in Knuller
asserted that , ‘the words “corrupt public morals” suggest conduct which
a jury might find to be destructive of the very fabric of society’.
268 The Journal of Criminal Law (2008) 72 JCL 268–282
doi:1350/jcla.2008.72.4.505
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