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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hamilton, R v  EWCA Crim 2062 (16 August 2007)
Cite as:  EWCA Crim 2062,  QB 224,  2 WLR 107
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CANTERBURY
HH Judge WILLIAMS
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE AIKENS
DAME HEATHER STEEL
|- and -
|Simon Austin Hamilton
James Townend QC and Andrew Jones for the Respondent
Hearing date: 15 May 2007
Crown Copyright ©
Lord Justice Thomas:
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.
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
"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 that filming up women's skirts in a supermarket was in public with the real possibility that members of the public could have witnessed it and that at least two people must have been able to see it if they had looked. Secondly, the act was so obscene as to outrage public decency.
The defence argue: not a bit of it. They say that no one did see him. That despite the fact that he filmed, on his own admission, approximately anything between 10 to 20 hours' worth of up-skirting images, no one confronted him or spoke to him and no one saw him and that the act, in any event, is not so obscene as to outrage public decency."
i) The appellant contended that the offence of outraging public decency as developed by the nineteenth century cases was confined to cases where a lewd act was in fact witnessed by at least one person; and that the public element was satisfied if in addition at least one other person witnessed or could have seen the act. As no one saw the appellant in the act of filming, no one saw a lewd act; public decency could not have been outraged; therefore no offence was committed.
ii) The prosecution submitted that the offence was committed if three elements were proved:a) The act was committed in public;b) The act was of such a lewd, obscene and disgusting character as to constitute an outrage to public decency;c) The act was either seen or was capable of being seen by two members of the public present at the time of its commission.Each of these elements was satisfied; the fact that no one actually saw the appellant filming did not matter. The act of filming was capable of being seen and could have come to light if store detectives had been more vigilant, or his bag had spilled or someone had heard the sound of the video or been curious as to the appellant's movements.
"Our common law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable or inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised."
The issue raised in the appeal gives rise therefore not only an issue as to elements of the common law offence, but also an issue as to the way in which the principles derived from the cases are to be applied to contemporary standards of behaviour.
The origin of the offence
i) The earliest case appears to have been Sedley's case (1675) Strange 168, 1 Sid 168; the defendant Sir Charles Sedley showed himself naked on the balcony of a house in Covent Garden in the presence of several people and urinated on them. He was indicted at common law and pleaded guilty; he was told by the justices that:"Not withstanding that there was not any Star Chamber, yet they would leave him to know that the Court of King's Bench was the custos morum of all the King's subjects and that it was then high time to punish such profane actions, committed against all modesty, when they were as frequent as if not only Christianity but morality also had been neglected."
ii) In Crunden (1809) 2 Camp 89, the defendant went bathing at Brighton; he could be seen as he undressed and swam in the sea. He was convicted of outraging decency for exposing his naked person in presence of people. The note to the report states that this was the first prosecution of the sort in modern times, the only case resembling it in the books being that of Sedley. McDonald CB held that by exposing his naked person he was guilty of a misdemeanour, as it outraged public decency.
"The law will not tolerate such an exhibition. Whatever his intention might be, the necessary tendency of his conduct was to outrage public decency and to corrupt public morals."
It was no defence that people had previously bathed there naked before the houses were built: "Whatever becomes the habitation of civilised men, there the laws of decency must be enforced."
i) In Hawkins bk. 1 c.5 s.4 (7th edition 1787) described the offence (categorised as an offence against God) as "All open lewdness, grossly scandalous, such as was that of those persons who exposed themselves to the people in a balcony in Covent Garden with most abominable circumstances."
ii) In East: Pleas of the Crown (1803) under the heading Offences against religion, morality and the church establishment, one of the offences was "all scandalous breaches of morality exhibited in the face of the people, such as the conduct of one who exposed himself naked to the public view from a balcony in Covent Garden."
iii) Burn's Justice of the Peace (28th edition 1837) under the title Lewdness, was more detailed:"But although lewdness be properly punishable by ecclesiastical law, yet the offence of keeping a bawdy-house cometh also under the cognizance of the law temporal, as a common nuisance, not only in respect of its endangering the public peace, by drawing together dissolute and debauched persons, but also in respect of its apparent tendency to corrupt the manners of both sexes. (3 Inst 205; 1 Hawk.c74, Obs.1.)So, in general, all open lewdness grossly scandalous is punishable upon indictment at the common law. (Hawk c.5.s.4; and see a form of indictment for open fornication, West, 239; R v. Delaval, 1 Bla. Rep. 439). An indecent exposure of the person to public view is an indictable offence at common law, (R v. Crunden), 2 Camp. 89) as in the case of public bathing: as to which see title "Bathing," Vol. I. In R v Sir Charles Sedley, Stra.168; Sir C. Sydley's case, 1 Keb.620, …A count in an indictment charged that a defendant "did attempt to assault" a girl "by soliciting and inducing her" to place herself in an indecent attitude, he doing the like: it was held that such a count was bad. (R v. Butler 6 C&P.368).
iv) Archbold (1st edition, 1822, chapter 5, section 3) set out a model indictment for "open and notorious lewdness" in respect of exposure of the naked person. It referred to the defendant"on a certain public and common highway there situate, in the presence of divers liege subjects of our said lord the King, and then and there being, and within sight and view of divers other liege subjects through and on the said highway then and there passing and repassing, unlawfully, wickedly, and scandalously did expose to the view of the said persons so present, and so passing and repassing as aforesaid, the body and person of him the said, …, naked and uncovered, for a long space of time, to wit, for the space of one hour: to the great scandal of the said liege subjects …"
The nineteenth century cases
i) In Rouverard tried at York (see the report of Webb in Denman's reports at p 344 referred to in sub-paragraph iv)), the defendant had exposed himself at a window in an attempt to excite a female who lived on the opposite side of the street. Parke B directed the jury that exposure by the defendant to one person was not sufficient to constitute the offence, but if the jury found that the defendant was in such a position that those in the street could have seen him had they happened to look, it was an offence; it did not matter that no one in the street had actually seen him.
ii) In Bunyan & Morgan (1844) 1 Cox 74, the two defendants were seen by a servant through the window exposing themselves to each other and committing lewd acts in a parlour room of a public house where they were alone; she summoned others who witnessed the act. The indictment charged the offence as being in the sight and view of the servant and divers others. It was argued that publicity was of the essence of the offence and that therefore it was essential that it be committed in a public place so that the natural consequence of it was that it would be seen by others and that it was actually seen by others. The Recorder of London held that it was not necessary to prove that the public would detect them as the parties would seek as much privacy as they could, but was their position such that there was no reasonable probability of their being discovered? It was sufficient that they exposed themselves in a place where they were likely to be witnessed by others.
iii) In Watson (1847) 2 Cox CC 446; the defendant exposed himself to a 12 year old female in Paddington Churchyard. He was found guilty on an indictment charging him with outraging public decency on the basis of exposing himself in a public place, but only in the presence of the girl. The conviction was challenged on the basis that, although the act was plainly indecent and in a public place, it was no offence in law as only one person was present; the indictment charged the offence as being in the sight and view of the girl, but not others. Lord Denman's short judgment was:"The general rule is that a nuisance must be public; that is to the injury or offence of several. There is no precedent of such an indictment as the present and we are not inclined to make one."
There was an offence of exposure under the Vagrancy Act 1830, but he was not charged with that offence.
iv) That decision was followed in the following year in Orchard & Thurtle (1848) 3 Cox CC 248 and in Webb (1848) 1 Den 338; 2 Car & K 933. In the first case, the relevant part of the indictment charged the defendants with exposure to each other and the commission of lewd acts in a urinal in a market which was alleged to be a public place; no one could see in from the outside. The prosecution argued that if the defendants committed an act in a place where the public could enter and witness what was happening then that was sufficient. It was held by Cresswell J at the Old Bailey that the place was not a public place for the purpose of the offence as everyone who entered had to expose himself and exposure to one person was not enough. The second case, Webb is the more important; the defendant had exposed himself to a bar maid in the bar of a public house when there was no one else in sight. He was indicted for outraging public decency and found guilty; his conviction was reserved for the opinion of five judges in the Exchequer Chamber, including Cresswell J and Parke B. The argument was made on his behalf that the defendant should not have been convicted of outraging public decency as the indictment averred that he exposed and exhibited himself in the "presence" (as opposed to "within sight and view") of the woman and others; it was essential it be in the sight of the public and the words used in the indictment did not make this clear. That in any event the evidence showed that there was indecent exposure in the sight of one woman only and that was not sufficient for the offence of outraging public decency. The prosecution contended that the words in the indictment meant "expose to view". All the judges agreed that, although the indictment averred that he exposed and exhibited himself in the presence of others, the evidence proved only an exposure in the sight of the woman; that was insufficient to prove the offence. Differing views were expressed by the judges in the course of argument and in their judgments on whether it was sufficient to aver exposure in the presence of people rather than averring that it was also in the sight or view of people so that they could see it (as opposed to actually seeing it); Pollock CB observed in the course of argument: "This indictment says 'in the presence of'; and it might be that the defendant took particular care that it should not be seen."The case therefore appears to have left open the point as to whether the act had to be merely in the presence of others or whether it had to be in the presence of others who could have seen the act, but the strong view expressed was that it had to be in the sight of others. The 1848 edition of Archbold observed in the light of Webb:"The allegation that the offence was committed in the sight and view of divers liege subjects etc appears to be necessary"
v) In Holmes (1853) 1 Dears 207, the defendant exposed himself on a public bus; he was indicted for exposing himself in a public vehicle frequented and used by divers subjects of the Queen "to the view of" them and in a second count for exposing himself in a public place. It was considered by a court of five judges. It was contended that there was no offence because the bus was not a public place so as to constitute a nuisance. Lord Campbell CJ's judgment was:"It would be a disgrace to the law if we had any doubt that both counts are good. The defendant exposed himself in a public omnibus in the New Road in the presence of several women and this country would not be a fit place to live in if this were not an offence."Parke B simply held that the omnibus was a public place and exposure to more than one person was an offence.
vi) In Elliot and White (1861) Le & Ca 103, the defendants were convicted of exposing themselves on Wandsworth Common under an indictment that charged them with doing so in the "sight and view" of divers others. There was evidence that they had sexual intercourse on the common, but that there was no evidence that it was seen by anyone other than a single witness or within the possible sight and view of anyone else who was shown to be there. Though their act could have been seen by others on the common or a public footway or footbridge, there was no evidence that there were persons on the common or the footway or footbridge at the time. The jury were directed that they could convict if the acts could be seen without difficulty by others. It was argued for the defendant that the exposure had to be public in the sense of being to the offence or injury of more than one person; the prosecution argued that an indecent exposure was indictable whether seen by others or not, as they exposed themselves where they might have been seen. Although one judge suggested that all open lewdness was indictable as outraging public decency, the argument centred on the question whether a conviction could be upheld, as there was no evidence that anyone other than the single witness was passing at the time and therefore might have seen it. Weightman J noted:"The case depends on this question, Could the parties be convicted if no one saw them, as for instance, upon their own confession merely?"The court of 5 judges disagreed amongst themselves; it was to be re-argued, but the report notes that the court subsequently decided that it was not desirable to do so and no judgment was delivered. The note in the report observes that the case left the law uncertain as to position, where the exposure was in a public place and it was actually seen by one person and it could have been seen by passers by.
vii) In the following year the Court of Criminal Appeal in Ireland decided in Farell (1862) 9 Cox CC 446, that indecent exposure seen by one person and capable of being seen by one person only was not an offence. The defendant exposed himself on a public road so that he was seen by one person as there was only one person passing at the time, though he could have been seen by others who might have been passing. The Chief Justice giving the judgment of the court said in quashing the conviction:"but it is not to be taken that we lay it down that if the prisoner was seen by but one person, but there was evidence that others might have witnessed the offence at the time, we would not uphold the conviction; but in this case there is no evidence that anyone could have seen the prisoner but one female. Therefore all we say is, that an exposure seen by one person only is not an offence at common law. If there had been others in such a situation that they could have seen the prisoner, there would have been a criminal offence".
viii) In Thallman (1863) 9 Cox CC 388, the defendant exposed himself on the roof of a house in Albemarle Street, Piccadilly opposite to a window in a house where females lived. He was indicted for doing this in the "sight and view" of those who lived opposite and of those going along the public highway. His actions could not be seen from the street but only from the windows of neighbouring houses. He was convicted, but argued that the exposure was not visible to anyone passing along the street and therefore was not in a public place. The court held in a very short judgment that it was not necessary that the exposure be on a public highway. "If it is in a place where a number of the Queen's subjects can and do see the exposure, that is sufficient". In their very illuminating work Sexual Offences: Law and Practice, Judge Rook QC and Robert Ward, (3rd edition para 14.43) consider that this case was an example of the court considering that the requirement that the act must be committed in a public place was falling into disfavour; they rely on dicta in other cases that they suggest support their view.
i) The act was of such a lewd character as to outrage public decency; this element constituted the nature of the act which had to be proved before the offence could be established.
ii) It took place in a public place and must have been capable of being seen by two or more persons who were actually present, even if they had not actually seen it. This constituted the public element of the offence which had to be proved. As the cases to which we will refer show, there was still some uncertainty as to what was required. In all the cases the act had in fact been seen by one person, but Elliot and White left open the point summarised by Weightman J which we have set out.
"I am of the opinion that we should not hold that it is sufficient to prove that, as a matter of law, the place was one to which there was no strict legal right of access in order to make out a defence where the act is in fact committed in the presence of a number of the public, in the presence of a number, that is, of persons. It is, I concede, difficult to define affirmatively what is a public place; this place, however, is clearly so. The public did undoubtedly have access to it. I am by no means sure that at common law the publicity of the place itself is an essential element in the offence, and I am not inclined now to say so: it is not necessary to decide this question. It is, however, obvious that what is a public place may vary from time to time, and what we now have to consider is, was this place at the time public?"
He considered that it was, as the public resorted to it. The other judges came to the same conclusion, but they all made it clear that they either thought that the offence could be committed without it being in a public place or were not prepared to rule that out. Huddleston B added:
"The beach at Brighton is not public property, yet an exposure there is punishable. It seems to be established that, speaking generally, whatever openly outrages decency and is injurious to public morals is a misdemeanour at common law. The act was in a public and open place and that disposes of the case, but I am by no means satisfied that indecency before several in a private place is not punishable."
The modern cases
"In the judgment of this court, it is now well established that an offence so described is punishable at common law and, indeed, it was not contended on behalf of the defendant that no such offence existed. It is equally well established that the act complained of must be committed in public if it is to constitute the offence and, in many of the reported cases, the main issue was the question what had to be proved in order to show that the act was committed in public"
Relying on Watson, Webb and Farrell, he concluded that:
"it is, in the view of this court, clear that more than one person must at least have been able to see the act complained of, if the charge is to be made out.
So far as the present appeal is concerned, there was undoubtedly evidence that more than one person actually saw the act complained of, namely, the two police officers. Whether the young man who retreated hurriedly from the lavatory also saw it is not known, as he was not called as a witness, but there was material before the jury from which they could infer that he did. However that may be, the requirement that more than one person should have been able to see the act was plainly satisfied.
In addition to publicity as explained above, it is of course necessary for the prosecution to establish that the act complained of was an act of indecency or, to use the words in the indictment, an act outraging public decency. On the assumption that the evidence of the police officers about the behaviour of the defendant was accepted by the jury, this requirement also was plainly satisfied."
It was not necessary to prove that the act in fact disgusted and annoyed all those who saw it:
"In the present case, it is to be noted that, in the particulars of offence, the act was described as "of a lewd obscene and disgusting nature and outraging public decency" and it was incumbent upon the prosecution to satisfy the jury not merely that the defendant did the act and did it in public, but also that the act was of the description alleged. The operative words, i.e., "of a lewd obscene and disgusting nature and outraging public decency," may be paraphrased without altering their effect as "such an act of a lewd obscene or disgusting nature as constitutes an outrage to public decency involving great disgust and annoyance of divers of Her Majesty's subjects." If the jury were so satisfied, the offence was proved and, in the judgment of this court, it was not necessary for the prosecution to go further and prove actual disgust or annoyance on the part of any observer. "
"that the substantive offence (and therefore the conduct the subject of the conspiracy) must be committed in public, in the sense that the circumstances must be such that the alleged outrageously indecent matter could have been seen by more than one person, even though in fact no more than one did see it. If it is capable of being seen by one person only, no offence is committed. "
He then answered the prosecution argument that it was immaterial that the act alleged to outrage public decency took place in public provided the public's sense of decency was outraged.:
The authorities establish that the word "public" has a different connotation in the respective offences of conspiracy to corrupt public morals and conduct calculated to, or conspiracy to, outrage public decency. In the first it refers to certain fundamental rules regarded as essential social control which yet lack the force of law: when applicable to individuals, in other words, "public" refers to persons in society. In the latter offences, however, "public" refers to the place in which the offence is committed. This is borne out by the way the rule was framed by my noble and learned friend, Lord Reid, in Shaw v DPP  AC 220 in the passage which I have just cited. It is also borne out by what is presumably the purpose of the legal rule - namely, that reasonable people may venture out in public without the risk of outrage to certain minimum accepted standards of decency.
On the other hand, I do not think that it would necessarily negative the offence that the act or exhibit is superficially hid from view, if the public is expressly or impliedly invited to penetrate the cover. Thus, the public touting for an outrageously indecent exhibition in private would not escape: see Reg. v. Saunders, 1 Q.B.D. 15."
i) In May (1990) 91 Cr App R 157, the defendant simulated sex in the presence of two boys in a school classroom with a door into a well used corridor that was sometimes open. It was contended that as they were participants, the acts were not committed in the presence of two persons and therefore not in public. The court held that the public nature of the offence could be established if it could be proved that more than one person "must at least have been able to see the act. If one person is proved to have seen the act and others might have seen it that is enough." As the boys were not participants and it was possible anyone might have walked into the classroom at any time, there was ample evidence for the jury.
ii) In Rowley (1992) 94 Cr App R 99, the defendant had left notes which were offering money to boys who would run errands; although the notes were suggestive, the defendant's diary provided evidence that the notes were indicative of intended sexual activity with the boys. The judge admitted the diaries into evidence and directed the jury that they were entitled to look at the motive and purpose behind the notes. Taylor LJ giving the judgment of the court held:"In our judgment the offence consists in the deliberate commission of an act which is per se of a lewd, obscene or disgusting nature and outraging public decency. The crux of it is therefore the nature and effect of the act itself. Although the ultimate intention of the actor and his motive for his act may be the subsequent performance of lewd, obscene or disgusting acts, his intention and motive cannot, in our judgment, supply lewdness or obscenity to the act if the act itself lacks those qualities. A member of the public is either outraged by the act or not. He will not be affected in his reaction by whether thoughts or fantasies may be in the actor's mind or his diary. Evidence of those would not be before him. Accordingly, in our view, the learned judge was in error in holding that regard should be paid to what had motivated the appellant in leaving the notes….. It follows that in our judgment the learned judge was in error in rejecting the submissions that were made to him based upon the notes themselves, because there was nothing in the acts complained of here capable of outraging public decency."
iii) In Walker  1 Cr App R 111 the defendant exposed himself in the sitting room of a house to a young child. This court affirmed that two people must have been able to witness what happened and the act must have been committed in public in the sense that there was a real possibility that members of the general public might witness what happened, as the purpose for which the offence existed was that people must be able to venture out in public without the risk of outrage to minimum standards of decency. This did not mean that the act had to be done in a place of public resort, but the public must be able to see what happened, such as on a balcony of a private house open to public view. As Rook and Ward state, this decision made clear that the requirement that the act take place in a place where it can be seen by the public remained an ingredient of the offence.
iv) In Choi  EWCA Crim 1279 (Court of Appeal Transcript 7 May 1999) the defendant went into a cubicle in a ladies lavatory in a supermarket and filmed a lady in the next cubicle; she saw the lens or the mirror attached to the lens and called for help. It was argued unsuccessfully by the defendant that there was no evidence for the jury that the act was lewd or disgusting or that public decency was outraged. No point was taken as to whether the acts were in public or could have been seen by more than one person. The court held, that the prosecution had first to prove the acts took place in public, but there was no issue on that.
"Next the prosecution would have to establish that those acts were such as to disgust ordinary, right thinking people and third, that those acts were such as they would outrage public decency. The prosecution did not have to prove that there was a bystander who was actually outraged."
The second and third elements which the prosecution had to establish were issues for a jury as representing the standards of ordinary people. The court should not interfere unless it was unarguable that the acts were not disgusting or would not outrage. It was submitted on behalf of the appellant in this appeal that the point should have been taken that, as the woman who was filmed was the only person who saw the act, the public element of the offence was not satisfied.
"Voyeurism or 'peeping' is an activity which is normally regarded as a nuisance, and in many instances is not criminal in England and Wales…. We were told of covert observations in changing rooms (both in shops, market stalls and schools), of hidden cameras filming in public changing areas and beaches and of course of the classic "Peeping Tom" looking into houses. Rather like flashing, our traditional attitude to such activity has been to regard it as unpleasant but a nuisance rather than criminal, possibly because of difficulties in definition."
i) An obscene act is an act which offends against recognised standards of propriety and which is at a higher level of impropriety than indecency; see Stanley  2 QB 327. A disgusting act is one "which fills the onlooker with loathing or extreme distaste or causes annoyance"; Choi (supra). It is clear that the act done by the appellant was capable of being judged by a jury to be a lewd, obscene or disgusting act. It is the nature of the act that the jury had to consider and it was clear in our view that the jury were entitled to find that it was lewd, obscene or disgusting, even if no one saw him doing it.
ii) It is not enough that the act is lewd, obscene or disgusting and that it might shock people; it must, as Lord Simon made clear in Knuller, be of such a character that it outrages minimum standards of public decency as judged by the jury in contemporary society. As was pointed out, "outrages" is a strong word. It is not necessary to establish that any particular member of the public is outraged, as this court said in Mayling and Choi; and it must follow that this requirement does not mean that anyone has to see the act whilst it is being carried out.
i) We accept that the public element first requires that the act done in a place to which the public has access or in a place, as set out in Walker where what is done is capable of public view. The filming by the appellant was done in a supermarket – a place to which the public had access – and in a place where what was done was capable of bring seen. On either basis this part of the public element was satisfied.
ii) The public element is not, however, satisfied unless the act is capable of being seen by two or more persons who are actually present, even if they do not actually see it (what is conveniently described by Rook and Ward as the two person rule). It was the scope of the two person rule that was the subject to which the submissions in this appeal were principally directed.
"Some scepticism was expressed in the Lords as to the availability of the common law offence where the act in question takes place behind the closed door of a lavatory cubicle and so is heard but not seen. Lord Falconer, speaking on behalf of the Government, thought that the common law was sufficiently flexible to cover this scenario and that an act would be covered if it was witnessed or capable of being witnessed, whether by being seen or heard. We respectfully agree."