Hamilton, R v

The common-law offence of outraging public decency requires both an act which, judged by contemporary standards, is lewd, obscene or disgusting enough to outrage minimum standards of public decency, and a public element. The public element is met where the act occurs in a place to which the public have access, or is capable of public view, and two or more persons are actually present and capable of witnessing its nature. They need not actually see or hear it.

The two-person requirement establishes sufficient publicity. It does not require proof that any person was actually outraged. Whether concealed filming was capable of being seen is a question for the jury on the evidence.

The appellant was convicted at Canterbury Crown Court of offences involving indecent images of children, taking an indecent photograph of a 14-year-old girl, and five counts of outraging public decency. The latter counts arose from concealed filming up adult women’s skirts in supermarkets. No victim, store detective or other person was shown actually to have noticed the filming.

He appealed against conviction on the basis that actual observation was required for the common-law offence, that the counts had been wrongly joined, and that they should have been severed. He also appealed against sentence. The central issue was whether covert up-skirting could amount to outraging public decency when nobody actually witnessed the act.

1. Conviction appeal dismissed. The court held that the offence of outraging public decency has two elements. First, the act must be sufficiently lewd, obscene or disgusting to outrage minimum standards of public decency, judged by contemporary standards. Secondly, it must have the required public character.

2. Following Knuller [1973] AC 435 and R v Mayling [1963] 2 QB 717, the public element requires an act in a place to which the public have access, or one capable of public view, where at least two persons are actually present and capable of witnessing its nature. The persons need not actually see it. In principle, witnessing may also occur by hearing. The two-person rule concerns the public character of the offence; it does not require proof that any member of the public was in fact outraged.

3. The jury could properly find that concealed up-skirting was lewd, obscene or disgusting and sufficiently serious to outrage public decency. It could also find from the evidence that other persons were present and that the appellant’s method of filming was capable of being seen, although no one actually noticed it. That factual question was properly left to the jury.

4. The counts were properly joined. Both groups concerned the acquisition and retention of images which the jury could find were for sexual gratification. The judge was also entitled to refuse severance. Evidence of the up-skirting offences was admissible to rebut the asserted accidental downloading of indecent child images, and count 10 provided a further evidential link. There was no improper prejudice.

5. Sentence appeal allowed in part. The three-year sentences for possession with a view to distribution were not manifestly excessive. However, the consecutive nine-month sentences made the total sentence excessive. They were made concurrent, reducing the total from three years and nine months to three years.

• Court of Appeal (Criminal Division): appeal against conviction dismissed; appeal against sentence allowed to the extent that the consecutive nine-month sentences were made concurrent. [2007] EWCA Crim 2062
• Crown Court at Canterbury: on 27 April 2006, the appellant was convicted before HH Judge Williams and sentenced to a total of three years and nine months’ imprisonment.
• Single judge: leave to appeal against conviction was refused, while leave to appeal against sentence was granted. The Full Court later granted leave on three conviction grounds.