F, R v

For the common-law offence of outraging public decency, the public element requires that the act be capable of being seen by two or more persons actually present, even if neither in fact sees it. Where the parties agree that the available evidence contains all relevant facts, a court must decide the issue on those facts and must not speculate that other persons might have seen the act. A terminating ruling reached by correctly applying that rule will not be overturned merely because a jury might have considered the issue on a different evidential basis.

The respondent was indicted at Leeds Crown Court for outraging public decency. Before trial, the parties agreed that the judge should determine, on the witness statement of the sole prosecution witness as agreed facts, whether the prosecution could satisfy the two-person rule.

The witness saw the respondent masturbating in a parked car. She stated that, whenever other people came into view, he stopped and covered himself. HHJ Grant held that the evidence did not show that two persons were present and capable of seeing the act, and made a terminating ruling.

The prosecution obtained leave under Criminal Justice Act 2003, section 58, to appeal. The central issue was whether the judge’s conclusion, applying R v Hamilton [2007] EWCA Crim 2062, was one that no reasonable judge could reach.

1. Appeal dismissed. The court granted the prosecution leave to appeal but confirmed the terminating ruling.

2. The court accepted that R v Hamilton [2007] EWCA Crim 2062 correctly stated the public element of outraging public decency. The act must be done in a place accessible to the public, or capable of public view, and must be capable of being seen by two or more persons who are actually present. Actual observation is unnecessary, but capability of observation by the required persons is essential.

3. There was no suggestion that the Crown Court judge had misdirected himself on that law. Accordingly, the ruling could be reversed only if no reasonable judge could have reached it. Although the question might ordinarily have been for a jury on fuller evidence, the parties had agreed that the witness statement supplied all the facts. It was therefore impermissible to infer that passers-by must have been capable of seeing the respondent masturbating when the agreed evidence was that he stopped and covered himself whenever anyone else appeared.

4. As the ruling was confirmed, the court ordered the respondent’s acquittal under section 61(3) of the Criminal Justice Act 2003.

• Court of Appeal (Criminal Division) — The prosecution was granted leave to appeal under section 58 of the Criminal Justice Act 2003. The appeal was dismissed and the Crown Court’s terminating ruling was confirmed. An acquittal was ordered under section 61(3).

• Crown Court at Leeds — On 16 June 2010, HHJ Grant ruled that the agreed evidence did not satisfy the two-person rule for outraging public decency and that the trial should not proceed.