public nuisance and outraging public decency - Law Commission

“which fills the onlooker with loathing or extreme distaste or causes
annoyance”; R v Choi (7 May 1999, unreported). It is clear that the
act done by the appellant was capable of being judged by a jury to be
a lewd, obscene or disgusting act. It is the nature of the act that the
jury had to consider and it was clear in our view that the jury were
entitled to find that it was lewd, obscene or disgusting, even if no one
saw him doing it. (ii) It is not enough that the act is lewd, obscene or
disgusting and that it might shock people; it must, as Lord Simon
made clear in the Knuller case, 44 be of such a character that it
outrages minimum standards of public decency as judged by the jury
in contemporary society. As was pointed out, ‘outrages’ is a strong
word.
3.23 In short, indecency is not simply a description of the nature of the object or
activity: it is not sufficient that an action can be described as “shocking” in the
abstract, meaning shocking to hear about. The main requirement is that the
action may produce a public reaction, by actually shocking or disgusting those
who witness it. That is why we consider indecency as part of the consequence
element rather than the conduct element of the offence. We shall return to this
point in considering the fault element of the offence, as one form of fault element
is foresight of consequences.
Place
3.24 The offence must be committed “in public” in the sense of being in a public place.
Lord Simon, in Knuller, said:
It was argued for the Crown that it was immaterial whether or not the
alleged outrage to decency took place in public, provided that the
sense of decency of the public or a substantial section of the public
was outraged. But this seems to me to be contrary to many of the
authorities which the Crown itself relied on to establish the generic
offence. The authorities establish that the word “public” has a different
connotation in the respective offences of conspiracy to corrupt public
morals and conduct calculated to, or conspiracy to, outrage public
decency. In the first it refers to certain fundamental rules regarded as
essential social control which yet lack the force of law: when
applicable to individuals, in other words, “public” refers to persons in
society. In the latter offences, however, “public” refers to the place in
which the offence is committed. 45
3.25 The place need not be “public” in the sense of being public property or there
being a public right of way: it is sufficient if members of the public can in fact see
the object or act in question, whether by going there or by looking in. 46 For this
reason one can commit the offence in one’s own home, if others could see in
through the window; 47 or on a roof; 48 or while trespassing in fields that are private
44 [1973] AC 435, [1972] 2 All ER 898.
45 [1973] AC 435, 494.
46 Bunyan (1844) 1 Cox CC 74, Wellard (1884–85) LR 14 QBD 63.
47 Rouverard (unreported) 1830.
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