Outraging public decency.

OUTRAGING PUBLIC DECENCY

As a common law misdemeanour, the offence of outraging public decency is triable only on indictment and is punishable with imprisonment fixed for a period at the discretion of the judge.

The act must be done in a place where at least two members of the public might see it. It is evident that Jane Horroll urinated in front of over 80 people at the theatre, this would mean that she has committed an act outraging public decency and it is irrelevant that the members of the audience were not outraged by this action.

In Lunderbech [1991] the defendant masturbated in a children’s playground and was seen by only two police officers who did not testify that they were outraged, the court said that “where the act is plainly indecent and likely to disgust and annoy, the jury are entitled to infer such disgust and annoyance without affirmative evidence that anyone was disgusted or annoyed”.

Therefore, the learned trial judge did not, as a matter of law misdirect the jury in Jane Horroll’s case.

In May (1989) the courts held that it was irrelevant that the boys may have enjoyed the performance of the schoolmaster ‘behaving in an indecent manner with a desk’ in the presence of the two boys. The effect seems to be that the offence is committed if the jury think the conduct outrageously indecent because it would disgust and annoy them and therefore the ordinary members of the public whom they represent, if they witnessed it.

In Knuller ...

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Therefore, the learned trial judge did not, as a matter of law misdirect the jury in Jane Horroll’s case.

In Knuller v DPP (1973) the majority of the House of Lords held orbiter, that outraging public decency was a common law offence, examples of which are indecent exposure, acts of sexual indecency in public and mounting an indecent exhibition as the courts decided in Cruden (1809), Gibson (1990) and Mayling (1963). A modern case in which the existence of the offence had previously been recognised by the Court of Criminal Appeal in is Mayling (1963). Any doubt as to the existence of the offence was removed by the decision of the Court of Appeal in 1991 in Gibsons (1990) where the court agreed with the majority of the House of Lords in Knuller.

The conduct or matter of outraging public decency need not occur in a public place, i.e one to which the public have access, but it must be ‘public’ in the sense that it occurs in a place where there was a real possibility that at least two members of the general public might see it, although not necessarily simultaneously as per Lord Simon in Knuller v DPP with whom Lord Kilbrandon agreed.

It is not necessary to prove that Jane Horroll’s act did in fact disgust and annoy anyone. It is enough that the conduct would be likely to disgust and annoy ordinary members of the public if they saw it, whether or not any actual spectators were disgusted or annoyed.

The mens rea required is an intention to do the physical thing complained of which is found to have outraged public decency. It is not necessary for the prosecution also to prove that the accused had an intention to outrage public decency or that he was subjectly reckless (or indeed, that ha had any mens rea) as to the risk of such an outrage occurring.

In other words the offence of outraging public decency is one of strict liability, as was followed in Gibson (1990).

With all the facts of this case and the legal principles that have been used for this argument, it is evident that Jane Horroll did in fact commit an act outraging public decency even though the audience did not find this offensive.

I would therefore wish that the House of Lords refuse this appeal on the grounds stated.

This concludes my submission, My Lord.