public nuisance and outraging public decency - Law Commission

deformed children 39 and exhibiting a picture of sores. 40 As Lord Reid said in
Knuller: 41
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.
3.20 In Gibson and Sylveire (the case of the foetus earrings) Lord Lane CJ said:
There are, it seems to us, two broad types of offence involving
obscenity. On the one hand are those involving the corruption of
public morals, and on the other hand, and distinct from the former,
are those which involve an outrage on public decency, whether or not
public morals are involved.
That distinction is clear, in our judgment, from the speeches of their
Lordships in Knuller. Lord Morris of Borth-y-Gest, said, at p. 468:
…
It may well be that in this present case it would have been
sufficient to prefer only count 1. But the conceptions of the
two counts are different. Count 1 alleges an intention to
debauch and corrupt. Count 2 raises the issue not whether
people might be corrupted but whether the sense of decency
of members of the public would be outraged.
There is no suggestion here that anyone is likely to be corrupted by
the exhibiting of these earrings. It seems to us that the two types of
offence are both factually and morally distinct.
3.21 The offence caused must be strong enough to amount to shock or disgust: mere
distaste or embarrassment would not seem to be enough. The cases of Choi and
Hamilton suggest that, in the list of relevant consequences, to shock and disgust
one should add humiliation (on the part of those photographed) and indignation
(on the part of bystanders).
3.22 In Hamilton, 42 the requirement was summed up as follows.
The first element is one that constitutes the nature of the act which
has to be proved. It has to be proved both that the act is of such a
lewd, obscene or disgusting character and that it outrages public
decency. (i) An obscene act is an act which offends against
recognised standards of propriety and which is at a higher level of
impropriety than indecency; see R v Stanley. 43 A disgusting act is one
39 Herring v Walround (1681) 2 Chan Cas 110.
40 Grey (1864) 4 F & F 73.
41 Para 3.4 above.
42 [2007] EWCA Crim 2062, [2008] QB 224 para 30.
43 [1965] 1 All ER 1035, [1965] 2 QB 327.
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