public nuisance and outraging public decency - Law Commission

…
I think that the objections to the creation of this generalised offence
are similar in character to but even greater than the objections to the
generalised offence of conspiracy to corrupt public morals.
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There are at present three well-known offences of general application
which involve indecency: indecent exposure of the person, keeping a
disorderly house, and exposure or exhibition in public of indecent
things or acts. The first two are far removed from sale of indecent
literature and I can see no real analogy with the third.
Indecent exhibitions in public have been widely interpreted.
Indecency is not confined to sexual indecency: indeed it is difficult to
find any limit short of saying that it includes anything which an
ordinary decent man or woman would find to be shocking, disgusting
and revolting. And “in public” also has a wide meaning. It appears to
cover exhibitions in all places to which the public have access either
as of right or gratis or on payment. There is authority to the effect that
two or more members of the public must be able to see the exhibition
at the same time, but I doubt whether that applies in all cases. We
were not referred to any case where the exhibition consisted of
written or printed matter but it may well be that public exhibition of an
indecent notice or advertisement would be punishable.
But to say that an inside page of a book or magazine exposed for
sale is exhibited in public seems to me to be going far beyond both
the general purpose and intendment of this offence and any decision
or even dictum in any case. 12
3.5 According to the majority in that case, however, it can also extend to other visible
manifestations, including publishing a book or a magazine. Lord Morris of Borthy-Gest
held that the offence was not confined to “displays” in the sense of things
immediately visible in public:
It seems to me to be wholly unrealistic to say that if a magazine which
is sold in public has matter on its outside cover which outrages public
decency (which means outrages the sense of decency of members of
the public) an offence is then committed, whereas if the outside cover
of the magazine is plain and innocuous but if as soon as the
magazines are opened the members of the public who buy them are
outraged by all that they see, then no offence is committed. 13
Lord Simon of Glaisdale, similarly, considered that the various authorities cited
established the existence of a broad offence of outraging public decency, rather
than a series of piecemeal offences such as indecent exposure and indecent
12 [1973] AC 435, 457-8.
13 [1973] AC 435, 467-8.
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