public nuisance and outraging public decency - Law Commission

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PART 3 OUTRAGING PUBLIC DECENCY: THE EXISTING LAW 3.1 The offence of outraging public decency appears to consist of performing any indecent activity in such a place or way that more than one member of the public may witness and be disgusted by it. As it was put in Hamilton, the leading modern case on the offence: 1 These cases established that, if the offence of outraging public decency were 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. Conduct element: the activities covered 3.2 The traditional forms of the offence involve either exposing oneself (either simply, or in the act of performing a sexual activity) or creating an indecent display, for example of pictures. Examples are as follows. (1) Indecent exposure. 2 (2) Performing sexual activities in public. 3 (3) Nude bathing in inhabited areas. 4 (4) Disinterring a corpse for dissection. 5 (5) Exhibition of sculpture consisting of human head with freeze-dried human foetuses as earrings. 6 (6) Urinating on a war memorial while drunk. 7 1 [2007] EWCA Crim 2062, [2008] QB 224 para 21 (CA). 2 Sidley (1663) 1 Sid 168; Watson (1847) 2 Cox CC 376; Holmes (1853) 1 Dears CC 207; Thallman (1863) 9 Cox CC 388; Wellard (1884–85) LR 14 QBD 63; Walker [1996] 1 Cr App Rep 111, CA. 3 Bunyan (1844) 1 Cox CC 74; Orchard (1848) 3 Cox CC 248; Elliot (1861) Le & Ca 103; Harris (1871) LR 1 CCR 282; Mayling [1963] 2 QB 717, 47 Cr App Rep 102, CCA; May (1989) 91 Cr App Rep 157, [1990] Crim LR 415, CA; Rose v DPP [2006] EWHC 852 (Admin), [2006] 1 WLR 2626, [2006] 2 Cr App R 29, QBD. 4 Crunden (1809) 2 Camp 89; Reed (1871) 12 Cox CC 1. 5 Lynn (1788) 2 Term Rep 733. 6 Gibson, Sylveire [1990] 2 QB 619, [1991] 1 All ER 439, 91 Cr App R 341 CA 7 Laing (unreported guilty plea) http://www.timesonline.co.uk/tol/news/uk/crime/article6933293.ece. 28
3.3 A controversial area is that of publications, which was discussed in full in Knuller (Publishing, Printing and Promotions) Ltd v DPP. 8 The facts concerned a magazine containing a number of contact advertisements for homosexuals. The defendant was charged with conspiracy to corrupt public morals and conspiracy to outrage public decency. 9 Lord Diplock, dissenting, devoted most of his discussion to the first count, holding that Shaw v DPP, 10 which affirmed the existence of that offence, should be overruled; but he also held that the issues in the two offences were logically indistinguishable. The old judicial dicta which in Shaw’s case were treated as the historical justification for holding that an agreement to do anything which tended to corrupt public morals amounts to a crime at common law, do not, as I hope to show, draw any distinction between conduct or conspiracies directed against public morals and conduct or conspiracies directed against public decency. As a matter of decision Shaw’s case was limited to conspiracies to corrupt public morals: as a matter of judicial reasoning its scope cannot logically be so confined. To bow to the decision yet to deny the legal reasoning upon which it was based is to draw the kind of distinction which reflects discredit on the English legal system. 11 It followed that in his view neither of the offences was known to the law. 3.4 Lord Reid regretfully held that the existence of conspiracy to corrupt public morals was established by Shaw and that the House of Lords ought not to overrule it. Outraging public decency was in his view confined to the two categories of indecent exposure and indecent displays: there was no generalised offence of outraging public decency, still less of conspiracy to do so. The second count is conspiracy to outrage public decency, the particulars, based on the same facts, being that the accused conspired with persons inserting lewd disgusting and offensive advertisements in the magazine “by means of the publication of the said magazine containing the said advertisements to outrage public decency.” The crucial question here is whether in this generalised form this is an offence known to the law. There are a number of particular offences well known to the law which involve indecency in various ways but none of them covers the facts of this case. We were informed that a charge of this character has never been brought with regard to printed matter on sale to the public. 8 [1973] AC 435, [1972] 3 All ER 898. 9 The distinction is that “corrupting public morals” refers to matter liable to corrupt and deprave, while “outraging public decency” refers to matter liable to shock and disgust: see para 3.20 below. Corrupting public morals, as distinct from conspiracy to do so, is not in itself an offence at common law. 10 [1962] AC 220. This case concerned the publication of the “Ladies’ Directory”, which was a list of contact details of prostitutes. 11 [1973] AC 435, 469. 29
Page 1: The Law Commission Consultation Pap
Page 4 and 5: CODE OF PRACTICE ON CONSULTATION T
Page 6 and 7: PART 5: CRITICISMS AND PROPOSALS: T
Page 8 and 9: issues of public policy at stake ma
Page 10 and 11: (3) improve the clarity of the law
Page 12 and 13: 2.3 The legal effect of a public nu
Page 14 and 15: classification. 26 In that sense, p
Page 16 and 17: and Hogan appears to suggest. The f
Page 18 and 19: 2.22 One kind of public nuisance, a
Page 20 and 21: to say that the defendants’ condu
Page 22 and 23: done was reasonably required given
Page 24 and 25: esponsible for a nuisance caused by
Page 26 and 27: the Attorney General’s office tha
Page 28 and 29: (fb) artificial light emitted from
Page 30 and 31: (9) Sending items purporting to be
Page 32 and 33: (not believed, or was reckless, or
Page 36 and 37: … I think that the objections to
Page 38 and 39: 3.8 Knuller lists further instances
Page 40 and 41: 3.15 In Knuller, however, there was
Page 42 and 43: “which fills the onlooker with lo
Page 44 and 45: the act, the case illustrates a fur
Page 46 and 47: that the conventional wording, as u
Page 48 and 49: when the publisher is incapable for
Page 50 and 51: New Zealand 3.46 The Crimes Act 196
Page 52 and 53: PART 4 CRITICISMS AND PROPOSALS: TH
Page 54 and 55: Rule of law 4.8 Lord Bingham devote
Page 56 and 57: 4.15 However, as we have seen, the
Page 58 and 59: does not offend against those princ
Page 60 and 61: Like other offences with an environ
Page 62 and 63: 4.43 We provisionally propose that
Page 64 and 65: instated as the fault element in wh
Page 66 and 67: 5.13 We do not regard the differenc
Page 68 and 69: whether or not they intended or rea
Page 70 and 71: allowing the Attorney General to br
Page 72 and 73: suitable for a regulatory approach;
Page 74 and 75: importance, the jury can always fin
Page 76 and 77: problematic. 5 There is force in Sp
Page 78 and 79: Sentencing 6.16 As with public nuis
Page 80 and 81: (3) to amend the Criminal Law Act 1
Page 82 and 83: Department /Agency: Law Commission
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Summary: Analysis & Evidence Policy
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Evidence Base (for summary sheets)
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The outlines of the offence were cl
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this is uncommon: one water authori
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other procedures are inadequate; an
Page 94 and 95:
Cost/benefit analysis summary Optio
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SPECIFIC IMPACT TESTS Legal Aid: It
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