public nuisance and outraging public decency - Law Commission

property but where other trespassers sometimes come; 49 or in a public lavatory 50
(though exposure as such is not covered, being expected there by reason of its
function 51 ). All these cases are listed and discussed in Hamilton, 52 which
comments:
In their very illuminating work Rook & Ward on Sexual Offences: Law
and Practice, 3rd ed (2004), para 14.43, Peter Rook QC and Robert
Ward consider that this case [Thallman] was an example of the court
considering that the requirement that the act must be committed in a
public place was falling into disfavour; they rely on dicta in other
cases that they suggest support their view.
In Wellard 53 Huddleston B expressed the view that:
The act was in a public and open place, and that disposes of the
case, but I am by no means satisfied that indecency before several in
a private place is not punishable.
This however was answered by the extract from Knuller set out above.
3.26 The requirement of being “in public”, in the extended sense established by the
cases, reinforces the point made above, 54 about indecency as a consequence
element. The public must have visual or auditory access to the place where the
offence was committed, so that they can be outraged in the capacity of
witnesses. It is not sufficient that the act is such as to outrage the public in the
sense that they would be shocked if they heard about it.
Potential witnesses
3.27 The act must be capable of being witnessed by more than one person: if only one
person saw it or could have seen it, it is not sufficient. In several cases where the
defendant exposed himself to one person, and there was no realistic chance that
anyone else would see it, the offence was held not to have been committed. 55
3.28 This point is illustrated in Rose v DPP, 56 concerning a couple who performed an
act of oral sex in a bank foyer within view of a CCTV camera. The recording was
seen by one bank official the following morning, some hours later, and it was
accepted that the couple were completely oblivious to the camera’s presence. As
well as illustrating the point about only one person being in a position to witness
48 Thallman (1863) 9 Cox CC 388.
49 Wellard (1884–85) LR 14 QBD 63.
50 Harris (1871) LR 1 CCR 282; Mayling [1963] 2 QB 717, 47 Cr App Rep 102.
51 Orchard (1848) 3 Cox CC 248.
52 Paras 20 and 21.
53 Above; cited in Hamilton para 22. But compare Walker, para 3.29(1) below.
54 Para 3.23.
55
Watson (1847) 2 Cox CC 376; Webb (1848) 3 Cox CC 183, 1 Den 338, 344; Farrell (1862)
9 Cox CC 446.
56 [2006] EWHC 852 (Admin), [2006] 1 WLR 2626, [2006] 2 Cr App R 29
37