Hamilton, R v [2007] EWCA Crim 2062

[2007] EWCA Crim 2062Case 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
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/08/2007
Before
LORD JUSTICE THOMASMR JUSTICE AIKENSDAME HEATHER STEEL
Between
ReginaRespondentSimon Austin HamiltonAppellant
Antony Chinn QC and Trevor Siddle for AppellantJames Townend QC and Andrew Jones for RespondentHearing Hearing date: 15 May 2007
Judgment
[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

The offence of outraging public decency

[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 R v Mayling [1963]2 QB 717 ((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 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.”

The arguments

[14]The arguments put forward can be briefly summarised. 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.[15]Both parties accepted that there was no case which covered the issue in this case; each relied on the decided cases, particularly those decided in the nineteenth century in support of its contentions. It is therefore necessary to examine the authorities and the contentions made about them.[16]It is, however, convenient to begin by referring to Knuller [1973] AC 435 as it was in that case that the House of Lords made clear that there was still an offence of outraging public decency at common law. The defendants had published a magazine in which advertisements were placed inviting readers to meet for the purpose of homosexual practices; their conviction for conspiracy to outrage public decency was upheld. Lord Simon of Glaisdale considered that the decided cases showed that there was a general rule that conduct which outraged public decency was an offence at common law; this was also the view taken in Russell: Crime 12th edit at Chapter 97.[17]However, though the offence can be expressed in very general terms in that way, it is clear that the offence of outraging public decency has particular elements that must be established before a person can be convicted. It was common ground that those elements of the offence applicable to the case against the appellant must be distilled from the cases where the relevant principles have been set out. This process was described by Parke B in Mirehouse v Rennel (1833) 1 Cl & F 527 at 546:
"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

[18]The early cases established the very general proposition that an offence was committed when public decency was outraged in the presence of people. 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.”
[19]But the offence was not confined to circumstances where a person exposed himself; for example in Delval (1763) 3 Burr 1434, the offence was applied to procuring a girl for the purposes of prostitution. The very general nature of the offence was reflected in the mid-nineteenth century books which were cited in the cases where the elements of the offence were further developed. 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’scase, 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

[20]A series of cases in the middle of the nineteenth century established the elements of the offence which had to be proved if a conviction was to be obtained. 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 248and 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.[21]In our judgment these cases established that if the offence of outraging public decency was to be proved, it was necessary, to prove two elements. 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.[22]The cases of the later nineteenth century were largely concerned with an examination of what constituted the public element in the offence. In Harris and Cocks (1871) 1 CCR 242, the defendants were observed by the police through openings in a urinal exposing themselves to each other and committing acts of lewdness; the Court of Crown Cases Reserved distinguished Orchard and held that a urinal open to the public just off a footpath was a public place just as much as a public highway. In Reed (1871) 12 Cox 171, Cockburn CJ held on assize that a person bathing naked at a place near Chichester could be convicted of indecent exposure if he bathed naked so that he could be seen from a path where the public were likely to go. A similar broad view was taken in Saunders (1875) 1 QBD 15; the defendant was a travelling showman who invited persons into a tent on Epsom Downs for payment to see an exhibition that was indecent. The Court for Crown Cases Reserved dismissed the contention that this was not a public place in a very short judgment. In Wellard (1884) 14 QBD 63, the defendant took a group of young girls onto a marsh at a spot away from a public footpath and exposed himself; they were all technically trespassers on the marsh, but the public frequented the spot without anyone trying to stop them. It was argued that it was not a public place. Lord Coleridge said:
“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

[23]That the main elements of the offence were settled by the series of cases in the middle of the nineteenth century to which we have referred was made clear by this court in Mayling [1963] 2 QB 717 ((1963) 47 Cr App R 102). That appears to have been the first case where any issue about the nature of the offence arose in the twentieth century. The defendant followed a man into a public lavatory; another man entered the lavatory and came straight out looking disgusted and annoyed. Two policemen then entered the lavatory and found the appellant and another masturbating, but they did not give evidence of their being disgusted at this. It was argued for the appellant that proof was required that more than one person must have been able to see the act in order to establish it was committed in public and proof was also required that those who saw the act were disgusted and annoyed. In giving the judgment of the Court of Criminal Appeal dismissing that argument Ashworth J said:
“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. ”
[24]Although some reference was made to the nineteenth century cases that established the offence of outraging public decency in Shaw v DPP [1962] AC 220, it was the decision of the House of Lords in Knuller which not only confirmed the continuing existence of the offence but which clarified elements of the offence. It is only necessary to refer to what Lord Simon of Glaisdale categorised at page 494 as the requirement of publicity: he first summarised the decision in Mayling which showed:
“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 [1962] A.C. 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.”[25]There are four further decisions of this court to which it may be helpful briefly to refer; all affirm the elements of the offence as established by the nineteenth century cases, but make clear what was meant by the act having to be committed in a public place. 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 [1996] 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 [1999] 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.[26]The judge was, as we have mentioned, referred to R (Rose) v DPP [2006] EWHC 852 (Admin). The defendant’s girl friend performed oral sex on him after midnight in the foyer of a bank to which customers of the bank were admitted to use an ATM. The foyer was subject to 24 hour CCTV surveillance and the acts of the defendant and his girl friend were seen the following morning when a bank employee viewed the video. The foyer was well lit and members of the public could have seen what was happening if they chose to look in, but there was no evidence that anyone was passing at the time or tried to enter the foyer. After reviewing the mid nineteenth century cases, Stanley Burnton J held that the offence of outraging public decency had not been committed as it had not been seen by anyone who was not participating in it and there was no evidence of there being any passers by. He also considered, but did not decide, that the private viewing by the employee of the bank of the video was not sufficient as the original act had not been an offence when committed.[27]There is only one case where acts very similar to those carried out by the appellant were dealt with in this court on an appeal against sentence after a guilty plea - Tinsley [2003] EWCA Crim 3032; the case is therefore of no assistance, though it is important to point out that the defendant had been seen by others, including a security guard at a supermarket where that defendant had filmed, whilst in the act of filming up women’s skirts or using mirrors to look up skirts.

Our conclusion

[28]There was some discussion as to whether s.67 of the Sexual Offences Act 2003 covered the acts committed by the appellant; the issue of whether it did or not is not relevant. The actions of the appellant were committed before the Act came into force and determining whether he might have committed that offence if it had been committed after the Act came into force is of no assistance in determining the scope of the offence of outraging public decency. It is, however, important to state that “voyeurism” as such was not a criminal offence; as was made clear in the Home Office report: Setting the Boundaries (2000) which led to the passing of the 2003 Act at paragraph 8.3:
“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.”
[29]We therefore turn to apply the two elements of the offence established by the nineteenth century cases which we have set out at paragraph 21, as elucidated by the more modern cases, to the facts of the present case. It is clear that the point in issue – whether the nature of what was being done was actually seen by someone – is without direct authority and the arguments finely balanced.[30]The first element is one that constitutes the nature of the act which has to be proved. It has to be proved both that the act is of such a lewd, obscene or disgusting character that it outrages public decency. 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 [1965] 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.[31]As to the second element - the public element - its precise ambit was the principal issue discussed in most of the cases. 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.[32]The prosecution contended that as the cases referred to the act as one which was capable of being seen by two or more persons, this element was satisfied, as the appellant could have been discovered filming by a vigilant security guard (as in Tinsley) or the contents of his rucksack could have spilled out.[33]The first step in the prosecution argument was that the requirement of seeing was not to be understood literally. They relied on a passage in Rook and Ward at paragraph 14.42 where the authors referred to a debate in the House of Lords on the Sexual Offences Bill 2003 where the Government was resisting the creation of an offence of sexual activity in a public lavatory on the basis that it could be prosecuted as outraging public decency:
“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.”
[34]There is no reason why in principle the nature of the act cannot be witnessed in another way such as hearing; we therefore accept the argument of the prosecution the nature of the act can be capable of being witnessed by means other than seeing. At first sight this conclusion does not advance the argument far in the present appeal, as there was no evidence that the acts of the appellant were seen or heard by anyone. However it is a first step, as it may be an indication that the two person rule is concerned with evidence as to the public requirement in the offence.[35]The contention did not, however, meet the appellant’s submission that the essence of the two person rule meant exactly what the cases, as the appellant submitted, in fact showed, namely that the nature of the act had been seen by one person and was capable of being seen by others. We accept that in all the cases to which we have referred the nature of the act was visible. Russell on Crime (12th edition 1964) at page 1430 refers to the cases of indecent exposure as cases where exposure in view of several persons constituted the offence. Moreover, it was argued that the reason why this was so was that it had to be shown that a member of the public was in fact outraged; Taylor LJ, as he then was, had referred to the outrage to the member of the public in the passage we have cited from Rowley at paragraph 25.ii) above; public decency could not be outraged unless the nature of the act was seen by someone.[36]However in our view the purpose of the two person rule was to provide a basic requirement that had to be satisfied before it could be said that the offence was of a sufficiently public nature for it to be an offence. We have referred to the purpose of the requirement that the act outraged public decency as set out in the speech of Lord Simon of Glaisdale in Knuller which we have cited at paragraph 24; it was that people should be able to venture out without the risk of outrage to certain minimum acceptable standards of decency. It is clear from this speech that the outrage which the act must bring about is the element of the offence that goes to the nature of the act; the public element, as the speech also makes clear, refers to the place where the act is committed. The two person rule, in our view, also goes to this element.[37]But as we have said, in all the cases at least one person saw the nature of the act. Is it therefore a rule of law that one person must actually see the nature of the act or are the cases in fact all cases no more than examples where proof by one person was merely an evidential requirement? As we have set out at paragraph 20.vi), the issue as to whether the nature of the act had actually to be seen was left open in the question posed by Weightman J in Elliot and White.[38]In Knuller, Lord Simon of Glaisdale summarised Mayling by referring to the fact that one person did in fact see it. In May, the court stated as we have set out in paragraph 25.i) that it was enough if one person saw the act and others might have seen it. The old form of indictment expressly referred to the act being “in view of” and “to the view of”. In contrast, the judgments in Rouverard,Webb, Farrell and Mayling all contain language that suggest that it is sufficient if two or more persons could have seen the act. But a decision based on the precise words used in the cases where the point was not in issue cannot be decisive as in all the cases someone saw the nature of the act and the court was addressing the question as to the public element in the offence. We are not applying a statutory provision, but a rule of law derived from legal principles and judicial precedents.[39]In our view it is necessary to have regard to the purpose of the two person rule; it goes solely to the necessity that there be a public element in the sense of more than one being present and capable of being affected by it. There is in our view no reason to confine the requirement more restrictively and require actual sight or sound of the nature of the act. The public element in the offence is satisfied if the act is done where persons are present and the nature of what is being done is capable of being seen; the principle is that the public are to be protected from acts of a lewd, obscene or disgusting act which are of a nature that outrages public decency and which are capable of being seen in public. As was pointed out in Bunyan and Morgan, a person committing such an act may wish as much privacy as possible, if there is a possibility of them being discovered in public, it would nonetheless be an offence. Looking therefore at the purpose of the two person rule, it can, in our view, be satisfied if there are two or more persons present who are capable of seeing the nature of the act, even if they did not actually see it. Moreover, the purpose of the requirement that the act be of such a kind that it outrages public decency goes, as we have said, to setting a standard which the jury must judge by reference to contemporary standards; it does not in fact require someone in fact saw the act and was outraged. In most cases, there will be no evidence against a defendant unless the act is seen by someone; but that does not mean that where an act is in fact done which is lewd, obscene or disgusting and is of a nature that outrages public decency and is done where it is proved that people are present and capable of seeing its nature, it is not an offence.[40]Thus in the present case, although no one saw the appellant filming, there was evidence from the videos that there were others present. But was what the appellant was in fact doing capable of being seen, even though no one actually did? It cannot be said, as is clear from Tinsley, that this type of filming is incapable of being seen. Whether on the facts of this case the way in which the appellant filmed up the skirts of the women was capable of being seen was a question for the jury. As is clear from the passage in the summing up which we have set out at paragraph 13, this was an issue expressly left to the jury by the judge. By their verdict of guilty the jury must have concluded that the way the appellant filmed was capable of being seen by those in the supermarket.[41]We therefore consider that the jury were entitled to convict the appellant and dismiss the appeal on counts 11-15 on this ground.

Joinder

[42]The appellant contended before the judge that the counts of outraging public decency should not have been joined in the same indictment as they were neither founded on the same facts nor were part of a series of offences of the same or similar character. Applying the test in Barrell and Wilson (1979) 69 Cr App R 620, the charges did not have a common factual origin; the only connecting link was that they were discovered at the same search of the appellant’s house; otherwise they covered different periods of time and the subjects of the counts of outraging public decency were adults not children. Nor, applying the principles established in Kray (1969) 53 Cr App R 569 and Ludlow v Metropolitan Police Commissioner [1971] AC 29, was there a sufficient nexus between them; filming adults was quite different to downloading child pornography.[43]In rejecting the submissions, the judge had held that there was sufficient nexus on the basis that they all involved the acquisition and retention of images for sexual gratification.[44]We consider that the judge was plainly correct. Both sets of offences involved the acquisition and retention of photographs where it was open to a jury to conclude that they were acquired and retained for the purposes of sexual gratification.

Severance

[45]It was next contended by the appellant that even if the counts were properly joined in the indictment, the judge had wrongly exercised her discretion in failing to sever the counts. There was severe prejudice to the appellant in defending both in the same trial; his defence to the downloading offences was that this was accidental and, as we have set out, his defence to the offences of outraging public decency, he cannot have outraged public decency as no one had seen him. Reliance was placed on the observations of Lord Taylor of Gosforth CJ in Christou [1997] AC 117 at 129 where he enumerated some of the factors to be taken into account.[46]The judge refused in her discretion to sever the indictment as she considered that the evidence in relation to the counts of outraging public decency was admissible in relation to the other counts to rebut the defence of accidental download; there was no improper prejudice.[47]It was submitted that the judge was wrong in her view on admissibility; the appellant had admitted to downloading adult pornography and the fact that he had filmed up women’s skirts was relevant only to an interest in adult pornography and not to child pornography.[48]We cannot accept that contention. In our view the evidence was admissible as it was relevant to the issue of accidental download; as to the difference between an interest in adult and child pornography, that was for the jury to consider when deciding the weight to be attached to the evidence. Furthermore count 10 of the indictment related to filming up the skirt of a schoolgirl and the retention of that film. Although the appellant had denied knowing she was under 16, it was a further common link which enabled the prosecution to contend that the retention of this film was evidence that the jury could use in deciding if the child pornography downloaded from the internet was accidental.[49]In our judgment the judge was entitled to exercise her discretion to refuse to sever the indictment; she made no error of law and took into account no irrelevant consideration. The decision she made was well within the exercise of her discretion as a trial judge in determining the best way of achieving a fair resolution of the issues.[50]Nor can any criticism attach to the way in which the judge summed the issues up for the jury; leave was refused by the full court on this issue, but the criticism was renewed before us as the judge had indicated that she would direct the jury in relation to their use of the evidence when making the rulings on joinder and severance. In fact she directed the jury to consider the counts separately. The fact that she gave no separate direction in relation to the evidence in our view was immaterial, as the relevance of the evidence would have been obvious.

Sentence

[51]It was contended by the appellant that the sentence for the offences of outraging public decency should not have been made consecutive to the sentence on counts 1-9 and the totality of the sentences on counts 1-9 was in any event too long. His career had been ruined and he would have to begin his life again on release. He had about 7500 files of still and moving images on his computer, but only 100 were illegal.[52]However the gravity of the appellant’s conduct in relation to counts 1-9 was shown by the fact that 2 of the images were at level 5 and about 49 at level 4 and there were 28 others of children; he was also convicted of two counts of possession with a view to distribution; one of those related to a level 5 image. Although we take into account the fact that the had not actually distributed any images, we do not consider that a total sentence of three years on the counts of distribution can be said to be manifestly excessive.[53]The sentences of 9 months for the counts of filming up the skirts of the schoolgirl and the women were made consecutive. This made the overall sentence too long. We will therefore make those sentences concurrent to the other sentences so that the total sentence to be served by the appellant is reduced to three years. To that extent the appeal on sentence is allowed.

Cited in 1 later judgment