Birch, R. v

For the common-law offence of outraging public decency, the prosecution must establish that the act was capable of being seen by more than one person. It need not prove that more than one person, or any particular member of the public, actually saw it.

An act committed in a place open to public view, where people were present or likely to pass, may satisfy that requirement even if the available evidence is CCTV footage and the identified observer is its viewer.

The applicant pleaded guilty at the Crown Court at Chester to outraging public decency after CCTV showed him exposing himself and masturbating at a bus stop, and later exposing himself while following a woman through the city centre. He was sentenced to three years’ imprisonment.

He applied to vacate his plea and for leave to appeal against conviction. His sole contention was that the acts had been seen only by the CCTV operator, whereas the offence required public outrage rather than observation by one individual.

1. The application to vacate the guilty plea and for leave to appeal against conviction was refused.

2. The court accepted the governing requirement recognised in Rose v Director and Public Prosecution [2006] EWHC 852: the conduct must have been capable of being seen by more than one person. The prosecution does not have to prove that particular persons actually saw the act.

3. That requirement was satisfied. The applicant masturbated at a bus stop in Chester which, apart from one obscured side, was open to public view. People were in the vicinity and were passing through the area. It was unrealistic to contend that the woman whom he followed was not capable of seeing either act of exposure.

4. The material could not support the conclusion that the plea should be vacated.

• Court of Appeal (Criminal Division): application to vacate the guilty plea and for leave to appeal against conviction refused: [2007] EWCA Crim 1914 .
• Crown Court at Chester: the applicant pleaded guilty to outraging public decency on 9 October 2006 and was sentenced to three years’ imprisonment on 30 October 2006.