Rose, R (on the application of) v Director of Public Prosecutions

For the common law offence of outraging public decency, the public element is not established where only one person, other than the participants, saw or could have seen the act. The fact that the act occurred in a public place is insufficient without evidence of a wider potential audience. A later private viewing of a CCTV recording does not necessarily establish the offence, particularly where the act was not previously witnessed, but that issue was left undecided. The appeal was therefore allowed and the conviction quashed.

The appellant was convicted by a Deputy District Judge of outraging public decency after engaging in oral sex with his girlfriend in a bank foyer shortly before 1 am. The foyer was accessible by swipe card, visible from outside and subject to CCTV surveillance. A bank manager later viewed the recording privately in the course of her employment. No evidence established that passers-by or other members of the public were present or could have seen the act when it occurred.

The appellant appealed by way of case stated. The central question was whether the private CCTV viewing by one person satisfied the public element of the common law offence.

1. Appeal allowed. The conviction for outraging public decency was quashed.
2. The common law offence requires a sufficient public element. The nineteenth-century authorities established that an indecent act seen, or capable of being seen, by only one person other than the participants does not constitute the offence. The principle was stated in R v Watson (1847) 2 Cox CC 446, followed in R v Webb (1848) 3 Cox CC 183 and (1848) 2 Car & Kir 933, and applied in Farrell (1862) 9 Cox CC 446.
3. The same approach was followed in R v Mayling [1963] 2 QB 717, where two police officers had witnessed the conduct. The present case contained no evidence that any other person was present, entered the foyer or could have seen the act at the relevant time.
4. The court did not decide whether a private viewing of a private recording could itself supply the public element, or whether the bank manager was a member of the public for that purpose. The court observed that the offence is committed when the act occurs, and expressed considerable force in the submission that a later private viewing of an act not previously witnessed would be insufficient.
5. The answer to the stated question was no. Detailed assessment of the appellant’s publicly funded costs was permitted.

1. High Court (Administrative Court): Allowed the appeal by way of case stated and quashed the conviction.
2. Deputy District Judge: Convicted the appellant on 5 October 2005 of the common law offence of outraging public decency.