Rose v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STANLEY BURNTON |
| Judgment Date | 16 March 2006 |
| Neutral Citation | [2006] EWHC 852 (Admin) |
| Docket Number | CO/10664/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 March 2006 |
[2006] EWHC 852 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
MR JUSTICE STANLEY BURNTON
CO/10664/2005
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
This is an appeal by way of case stated from a decision of Deputy District Judge Pascoe made on 5 October 2005 in which he found the appellant guilty of committing an act outraging public decency by behaving in an indecent manner, contrary to common law. That act was alleged to have taken place on 2 February 2005.
The case stated sets out the facts which are necessary for the court to determine the question of law raised by the case stated. The facts, which were said not to be in dispute, were as follows.
"(i) Up to and including 2 February 2005 access to the foyer of the Lloyds TSB University branch in Glossop Road, Sheffield was available to the general public using a swipe card to have the use of the ATM machines situate therein.
(ii) The said foyer was well lit and passers-by would be able to see in to the foyer had they chosen to look.
(iii) The interior of the foyer was the subject of 24-hours CCTV surveillance."
The case continues by stating that the Deputy District Judge heard evidence from a Mrs Helen O'Rourke, who was the manageress of the Lloyds TSB University branch in question. The statement of facts continues:
"(ii) It was part of her duty, upon attending work, to view the coverage of the foyer provided by the CCTV during the hours between the closing of the branch (save for the foyer) and the re-opening of the branch the day following.
(iii) In doing so, she stated that she observed on the CCTV coverage of the foyer for the early hours of 2 February 2005 a man who she identified as the appellant sat in the foyer with his back to the counter. The man's penis was exposed and erect and a female (identified as his girlfriend) was performing an act of oral sex upon him. She noted the time on the CCTV as 00:54"
that is to say, six minutes to 1:00 in the morning.
The Deputy District Judge said that he had not viewed the CCTV film himself but he had been shown stills, which showed the incident and the date and time. He referred to the fact that at his interview on 12 March 2005 the appellant admitted that "We" (that is to say, he and the lady who was with him, his girlfriend) "just forgot about the camera."
The appellant did not dispute the factual basis of the allegation and chose not to give evidence. The Deputy District Judge was not asked to find nor did he make any adverse inference against him by virtue of that decision.
The contentions on behalf of the appellant were that the act complained of could not have outraged public decency. There was no evidence of intention to insult and annoy and that the act of oral sex had not actually been witnessed at the time that it was being committed, and, therefore, the constituent ingredients of the offence had not been made out.
A number of authorities were referred to, including the cases of R. v. Walker (1996) 1 Cr.App.R. 111 and R. v. Shorrock [1994] 2 QB 279.
The Deputy District Judge states that he was of the following opinion.
"(i) That the act of oral sex was of such a lewd, obscene and disgusting nature as to constitute an outrage of public decency.
(ii) Although the appellant acknowledged in his Police interview that he had forgotten about the camera on this occasion, he did not deny knowledge of the existence of the camera or the possibility that his actions could have been seen by people passing by, and, as such, adopting the test of mens rea in the case of R. v. Shorrock, I was of the opinion that the appellant knew or ought to have known that, as a result of his action, a public nuisance would be committed.
(3) Although the respondent conceded that no member of the public had actually witnessed the commission of the act of oral sex at the time it was being committed, the witnessing of the event by Mrs O'Rourke in the course of her employment was a sufficient witnessing of the act to satisfy the requirements of the offence and that the value and importance of video and CCTV evidence was an important evidential tool in our criminal justice system."
The question stated for the opinion of the High Court is:
"Was I correct in finding that 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 the public decency?"
The appeal, on analysis, raises three issues. It is not in contention that an act such as that performed by the appellant and his girlfriend, while it may be regarded as perfectly decent if carried out in private, is not so if carried out in public. What is meant by "in public" I shall in a moment address.
Nor is it submitted that if the facts constituting the offence were proven in this case there was any lack of the necessary mens rea on the part of the appellant. The question that has been raised is as to whether the public constituent of the offence was proved in this case. As I stated above, there are so far as that matter is concerned three real issues. The first is this. Is it sufficient to prove the offence that it is shown that only one person other than the participants in the act saw the act in question?
It is submitted that the essence of the offence is that there should be some sort of public injury and that the viewing of the act by one person does not satisfy that requirement. It is important to stress that although the Deputy District Judge found that passers-by might have witnessed what occurred in the foyer of the bank there is no finding that at almost 1:00 o'clock in the morning there were in fact any passers-by. Nor was there evidence of anyone seeking to enter the bank or entering the bank at the time that the offence was said to be committed.
The second and third issues are linked. If the only witnessing of the act is on a private CCTV system subsequently, is that a sufficient public element for the offence to be proved? The third issue, which is linked to the second issue is, for these purposes, whether the bank manager, whose private duty it was to view the CCTV and who saw it in private, a member of the public for these purposes?
In order to consider the first element and the first issue it may be assumed that the second and third issues could be decided in favour of the respondent, that is to say, the Prosecution. Is the viewing of an indecent act by one member of the public sufficient to constitute this offence?
It is important to bear in mind that the offence which was charged was a common law offence. It was not a statutory offence, such as the offence created by the Vagrancy Act of indecent exposure or an offence under the Sexual Offences Act 2003. The nineteenth century authorities on this common law offence are therefore relevant.
The first of the trio of nineteenth century authorities on the first issue is the case of R v Watson (1847) 2 Cox CC 446. The headnote reads:
"Indecent exposure. An indictment charging the defendant with having indecently exposed himself in a certain public and open place in the presence of one person only, cannot be sustained, whether that person be a female or not."
The indictment in that case was against the defendant for indecent exposure. The first count was one of indecent...
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