R v Simon Austin Hamilton

JurisdictionEngland & Wales
JudgeSIR CHARLES MANTELL,LORD JUSTICE HUGHES,Lord Justice Thomas
Judgment Date16 August 2007
Neutral Citation[2007] EWCA Crim 38,[2007] EWCA Crim 2062
Docket NumberNo: 2006/2534/C3,Case No: 2006/02534 C3
CourtCourt of Appeal (Criminal Division)
Date16 August 2007
Between
Regina
Respondent
and
Simon Austin Hamilton
Appellant

[2007] EWCA Crim 2062

Before

Lord Justice Thomas

Mr Justice Aikens and

Dame Heather Steel

Case No: 2006/02534 C3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT CANTERBURY

HH Judge WILLIAMS

Royal Courts of Justice

Strand, London, WC2A 2LL

Antony Chinn QC and Trevor Siddle for the Appellant

James Townend QC and Andrew Jones for the Respondent

Hearing date: 15 May 2007

Approved Judgment

Lord Justice Thomas
1

On 30 July 2003 a search warrant was executed at the appellant's home address in Sussex under s.4 of the Protection of Children Act 1978. The police seized a considerable quantity of computer equipment (including CDs and floppy disks, a Sony digital camera and a briefcase containing 8 digital video cassettes). After interviews and analysis of the computers, the appellant was charged and subsequently indicted with a number of offences which can be grouped as follows:

i) Making an indecent photograph of children contrary to s.1(a) of the Child Protection Act 1978. There were five offences charged in counts 1, 3, 4, 5, and 8 of the indictment which related to the downloading of indecent images of children from the internet.

ii) Possession of an indecent photograph of a child for show contrary to s.1(1)(c) of the Child Protection Act 1978; counts 2, 6 and 9 of the indictment charged three offences related to the distribution of indecent photographs of children.

iii) Taking an indecent photograph of a child contrary to s.1(1)(a) of the Child Protection Act 1978. Count 10 of the indictment charged this offence in relation to the taking of a photograph up the skirt of a 14 year old girl; we refer to the facts in more detail at paragraph 7. He was also charged with a further offence on Count 7, but acquitted on the judge's direction.

iv) Committing an act of outraging public decency contrary to common law. Counts 11, 12, 13, 14 and 15 of the indictment charged five of these offences which related to occasions in 2001 when it was alleged that the appellant had, in a manner we shall describe in more detail at paragraphs 5 and 6, filmed up adult women's skirts.

The principal issue in the appellant's appeal relates to whether, on the facts which are not in issue, the appellant's conduct amounted to the commission of an act outraging public decency.

2

The appellant was committed to the Crown Court at Canterbury as he was a practising barrister and well known in Sussex. On 4 June 2004 he made an application in person to have the counts relating to outraging public decency dismissed but that application failed. On 5 December 2004 an application was made that the offences under the Protection of Children Act should not be joined in the indictment with the offence of outraging public decency. This submission was rejected. Those applications were renewed at the commencement of the trial but rejected.

3

On 27 April 2006 the appellant was convicted on all the counts after a trial before Her Honour Judge Williams and a jury. He was sentenced that same day to a sentence on counts 2, 6 and 9 (possession of indecent images with a view to distribution) to 3 years' imprisonment with a sentence of 2 years' imprisonment concurrent for the offences of making indecent photographs. He was sentenced to a term of 9 months' imprisonment on count 10 and counts 11�15 in relation to filming up the skirt of the 14 year old and the adult women; the sentences were concurrent to each other but consecutive to the sentence of 3 years on counts 2, 6 and 9. The total sentence was one of 3 years and 9 months.

4

His application for leave to appeal against conviction was refused by the single judge who granted leave to appeal only on sentence. The application for leave to appeal against conviction was renewed to the full court who granted leave on 3 grounds:

i) Whether on the evidence adduced before the court an offence of outraging public decency had been committed, as no one other than the appellant was shown to be aware of what he was doing when was filming.

ii) Whether the offences of outraging public decency should properly have been joined with the other counts in the indictment.

iii) If they were properly joined, whether the judge wrongly exercised her discretion by failing to sever those counts from the other counts.

Leave was refused on other grounds.

The offence of outraging public decency

The facts

5

The appellant admitted taking video footage with a camera so positioned by him that he was able to take footage up the skirts of the 14 year old and the various women who were shopping in supermarkets. He had done so surreptitiously. Before entering the supermarket he placed his Sony digital camera in a rucksack with the lens hidden and pointing upwards and wedged in position; he disabled the indicator light that would have flashed when he was filming. He manoeuvred the rucksack into a position whereby it was pointed up the inside of a woman's skirt to film her underclothes in the area of her crotch; the camera would automatically focus on what was in the centre of the lens. This was a random method of filming, but he found that one of the best points at which to film was at check out queues where the woman up whose skirt he was filming was more likely to be stationary. This practice is known as �up-skirting�.

6

None of the women involved had ever seen him filming and none of the adults filmed had been identified; neither the store detectives nor anyone else had noticed what he was doing. What he had done was only discovered when the police found at his house 20 hours of his filming on video cassettes. It was accepted that there had to be a direct line of sight between the lens and the object which was being taken. It was contended therefore by the prosecution that the lens was therefore capable of being seen and so what he was doing could therefore have been seen at the supermarkets. This was disputed by the appellant.

7

The police identified the female referred to in count 10. She was a schoolgirl who had been filmed wearing a school uniform in the Westgate Leisure Centre in Chichester. She was at the time 14 years and 5 months. The appellant had been confident that she was a sixth former and at least 16 years old and had expressed surprise to hear that she was only 14.

8

The appellant said that he did not believe he had committed a criminal offence in filming adults. He had stopped filming in 2001, partly because he believed that this conduct was covered by s.67 of the Sexual Offences Act 2003.

The proceedings

9

On 4 June 2004 the appellant in person applied, as we have mentioned, to dismiss the proceedings in relation to the offences of outraging public decency on the basis that the prosecution had to prove there was an element of publication in the activity. It was his submission that there was no evidence that he was seen by anyone, there was no publicity and that his intention was irrelevant. The judge ruled principally in reliance of the decision in ( [1963] 2 QB 717 R v Mayling (47) Cr.App.R 102) that there was ample evidence upon which a jury could properly infer that the images were taken in public; that the film was capable of being seen by more than one member of the public and that such members of the public would have been outraged by the act of a male videoing up a woman's skirt.

10

The application was renewed by counsel on the basis of the Divisional Court's decision in R (Rose) v DPP [2006] EWHC 852 Admin. The judge rejected the submission on the basis that, whilst there was no evidence of anyone actually seeing the defendant filming women as alleged, the common law requirement was that at least two people must have been able to see the act in question.

11

The submissions made on that occasion and on 4 June 2004 had included a submission in relation to count 10 as, at that time, that count was also charged as an offence of outraging public decency. Following legal argument, as the count related to a 14 year old girl, the count was amended to the count to which we have referred above as taking indecent images of a child contrary to s.1(1)(a) of the Protection of Children Act 1978.

12

At the close of the prosecution case, it was submitted that on the judge's own test there was no case to answer since there had been no evidence of any member of the public who had been able to see the filming. The submission was rejected on the basis that it was entirely a matter for the jury.

13

When the judge summed up the case to the jury she directed the jury as follows:

�Here the Crown must make you sure of the following ingredients before you convict the defendant. Firstly, that it was committed in public. Well, there is no dispute about that. Secondly, that there existed the real possibility that members of the general public might witness it in the sense that at least two persons must have been able to see the act, namely, the filming. And, thirdly, that the act is of such a lewd, obscene or disgusting character that it constitutes an outrage to public decency. It is those two last ingredients which are in dispute here.

It is not necessary for the Crown to prove that the act in fact disgusted or annoyed any person, so the questions you have to ask and answer in respect of counts 11 to 15 are as follows: am I sure that when the defendant did the act, namely the filming, there was a real possibility that members of the public would witness it in the sense that at least two people must have been able to see it? Secondly, am I sure that the act was of such a lewd, obscene or disgusting character so as to constitute an outrage to public decency? If your answer to both those questions is yes, then your verdict should be guilty. If your answer to either of those questions is no, then your verdict should be not guilty.

The Crown argue here...

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16 cases
  • Douglas v DPP
    • Ireland
    • High Court
    • 7 Abril 2017
    ...law offence" (p. 493). 33 The ingredients of the offence of outraging public decency were again considered in Regina v. Hamilton [2007] EWCA Crim 2062 by the English Court of Appeal (Criminal Division). The appellant was convicted of a number of counts of outraging public decency contrary ......
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    ...relation to section 3 of the SOA. 51 The elements of that offence are different. The ambit of the offence was exhaustively considered in R v Hamilton [2008] QB 52 See the examples given in Rook & Ward on Sexual Offences Law and Practice 4th Ed (2010) page 604 footnote 22. 53 See Rook & Ward......
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    • Supreme Court
    • 21 Junio 2018
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7 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 Diciembre 2010
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    • Journal of Criminal Law, The No. 87-1, February 2023
    • 1 Febrero 2023
    ...see Norman St. John-Stevas, Obscenity and the Law (Secker &Warburg 1956).22. Law Com 399,2021, paras. 6.26-6.31.23. R v Hamilton [2007] EWCA Crim 2062 [31].24. Ibid [39]; Rose v DPP [2006] EWHC 852 (Admin) [24].25. In person exposure has a wide range of impact on the victim ranging from dis......
  • Court of Appeal
    • United Kingdom
    • Journal of Criminal Law, The No. 72-4, August 2008
    • 1 Agosto 2008
    ...of AppealOutraging Public DecencyR v Hamilton [2007] EWCA Crim 2062Keywords Outraging public decency; Public element; ‘Two-person’ rule;Knuller v DPP; Shaw vDPPThe facts presented in this case were lewd and bizarre. The appellant, apractising barrister, did not deny that he had taken video ......
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    • Journal of Criminal Law, The No. 87-1, February 2023
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