R v Gibson ; R v Sylveire

JurisdictionEngland & Wales
Judgment Date12 April 1991
Date12 April 1991
CourtCourt of Appeal (Criminal Division)

Court of Appeal

Before Lord Lane, Lord Chief Justice, Mr Justice Hutchison and Mr Justice Mantell

Regina
and
Gibson

Criminal procedure - co-accused - different character - judge's summing up

Different character of co-accused

Where one of two co-accused had good character while the other had previous convictions of which the jury was unaware, the judge in his summing up should say very little about the character of the defendants and leave it to counsel to make such references to the defendants' character as he saw fit.

The Court of Appeal, Criminal Division, so stated in allowing the appeal of Rodney Douglas Gibson against his conviction, along with another, at Southwark Crown Court (Judge Paiba and a jury) of gross indecency contrary to section 13 of the Sexual Offenes Act 1956.

Mr Edward Quist-Arcton for the appellant; Mr Nigel Ingram for the prosecution.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that in every case the judge had to tailor his summing up to the particular circumstances of the case. What might be desirable in a case of burglary might not be in a case of gross indecency.

Where one of the co-accused was of good character and the other had previous convictions to his name which the jury was unaware of, the judge, by stressing the good character of the one defendant, might be highlighting the bad character of the other defendant. That in turn could reflect adversely on the defendant who was of good character.

It was very difficult for a judge to balance the interests of each defendant.

Where one of the co-accused had good character and the other defendant had previous convictions which the jury was unaware of, it was advisable for the judge to say very little about the character of the defendant who did not have any previous convictions.

If the trial judge was of that view then it was prudent for him to indicate to counsel in the absence of the jury his opinion and his reasons for it.

It was then for counsel to make such references to the defendant's good character as he saw fit in his speech to the jury.

In the instant case no such reference was made by the judge nor was any indication given to counsel and only a passing reference was made by counsel of the defendant's good character.

Court of Appeal

Before Lord Lane, Lord Chief Justice, Mr Justice Rose and Mr Justice Garland

Regina
and
Gibson Regina v Sylveire

Crime - outraging public decency

Outraging public decency with foetus earrings

An offence existed at common law of outraging public decency and prosecution for that offence was not barred by section 2(4) of the Obscene Publications Act 1959 in which "obscene" had a restricted meaning given to it in section 1(1) of that Act.

The prosecution for such an offence did not have to prove that the person charged had an intent to outrage public decency or an appreciation that there was a risk of such outrage coupled with a determination nevertheless to run that risk.

The Court of Appeal so held when dismissing appeals by Richard Norman Gibson, aged 37, of Eton Rise, Leytonstone, a Canadian who came to the United Kingdom in 1983, and Peter Sebastian Sylveire, aged 43, of Duchy Street, Southwark, who founded the Young Unknowns Gallery in Bermondsey.

They were convicted in February 1989 at the Central Criminal Court before Judge Smedley, QC and a jury by a majority of 10 to 2 on a count of outraging public decency at common law.

Both were found not guilty by direction on a count of public nuisance. Gibson was fined £500 with 28 days imprisonment in default of payment, Sylveire £350 with 21 days in default.

Gibson made a model's head and attached to each of its ears an...

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8 cases
  • Douglas v DPP
    • Ireland
    • High Court
    • 7 April 2017
    ...its nature, it is not an offence.' 40 The mens rea of this modern manifestation of the offence was considered in Regina v. Gibson [1990] 2 Q.B. 619. The appellants exhibited a model of a head and attached an earring made from a freeze dried human foetus of three to four months gestation to......
  • Bita v DPP
    • Ireland
    • High Court
    • 25 June 2018
    ...one of the charges considered was conspiracy to outrage public decency), Regina v. Hamilton [2007] EWCA Crim 2062, and R v. Gibson [1990] 2 QB 619. He then went on to consider whether the offence as 'declared and crystallised' in the more modern English authorities continued to exist in I......
  • Webster v Dominick
    • United Kingdom
    • High Court of Justiciary
    • 22 July 2003
    ...1988 SLT 623; 1988 SCCR 254 R v B 1955 (3) SA 494 (D) R v B and C 1949 (2) SA 582 (T) R v Dunn [1973] 2 NZLR 481 R v GibsonELRWLRUNK [1990] 2 QB 619; [1990] 3 WLR 595; [1991] 1 All ER 439 R v Jacob (1996) 142 DLR (4th) 411 R v MaraisENR (1887) 6 SC 367 R v Thallman (1863) 9 Cox CC 388 R v T......
  • George Clark+james Smith+liam Fagan V. Her Majesty's Advocate+procurator Fiscal, Airdrie
    • United Kingdom
    • High Court of Justiciary
    • 25 June 2008
    ...(Burchell and Milton, Principles of Criminal Law, 2nd ed, p. 615) and the English offence of outraging public decency (R v Gibson, [1990] 2 QB 619), to conduct that is not of a sexual nature is a question that can be decided if and when it arises." [original citations added] [19] Two partic......
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6 books & journal articles
  • Sticks, Stones and Words: Emotional Harm and the English Criminal Law
    • United Kingdom
    • Journal of Criminal Law, The No. 74-6, December 2010
    • 1 December 2010
    ...This means that theoffence of outraging public decency will normally involve the inf‌liction(exhibiting picture of sores); R v Gibson [1990] 2 QB 619 (display of earrings madefrom dead foetus).90 R v Mayling[1963] 2 QB 717 at 726.91 [2007] EWCA Crim 2062; [2008] QB 224.92 Ibid. at [30]; R v......
  • Court of Appeal
    • United Kingdom
    • Journal of Criminal Law, The No. 72-4, August 2008
    • 1 August 2008
    ...the continued existence of the fullsubstantive offence of outraging public decency. This is exemplif‌ied bythe cases of R v Gibson [1991] 1 All ER 439, where the defendantexhibited in an art gallery an item known as ‘Human Earrings’ consist-ing of two frozen foetuses made into earrings whic......
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill Cyber Crime - Law and Practice Contents
    • 29 August 2019
    ...16 May 2012 (sentence), unreported, Southwark Crown Ct 13 R v Gersh (Daniel) [2008] EWCA Crim 1150 156 R v Gibson; R v Sylveire [1990] 2 QB 619, [1990] 3 WLR 595, [1991] 1 All ER 439, CA 162 R v Gold and Schifreen [1988] AC 1063, [1988] 2 WLR 984, [1988] 2 All ER 186, HL 1 R v Governor of B......
  • Offences Relating to Internet or Computer Content
    • United Kingdom
    • Wildy Simmonds & Hill Cyber Crime - Law and Practice Contents
    • 29 August 2019
    ...there also exist at common law the offences of outraging public decency and conspiracy to outrage public decency (see, e.g. R v Gibson [1990] 2 QB 619). A prosecution for an offence under section 2(1) of the OPA 1959 cannot be brought more than 2 years after the commission of the offence (s......
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