R v Hamilton [2007] EWCA Crim 2026, [2007] All ER (D) 99 (Aug)
Court of Appeal, Criminal Division
Thomas LJ, Aikens J and Dame Heather Steel
16 August 2007
The two person rule in respect of establishing the public element of the offence of outraging public decency contrary to the common law can be satisfied if there were two or more people present who were capable of seeing the nature of the act, even if they did not actually see it.
Antony Chinn QC and Trevor Siddle (assigned by the Registrar of Criminal Appeals) for the defendant.
James Townend QC and Andrew Jones (instructed by the Crown Prosecution Service) for the Crown
The defendant was a practising barrister. He was arrested and admitted surreptitiously taking video footage up the skirts of various women by means of a camera concealed in a bag. None of the women involved, nor anyone else, had seen the defendant filming them. What he had done was only discovered following a search of his home, where the police found some 20 hours of such video footage. The police identified one of the women featured in the defendant’s footage as a 14-year-old schoolgirl. The defendant was subsequently convicted of committing an act of outraging public decency contrary to the common law. He appealed against conviction and sentence. He submitted that the offence of outraging public decency, as developed by 19th century authorities, was confined to instances where a lewd act had been witnessed by a least one person.
LORD JUSTICE THOMAS:
His lordship considered, Thurtle (1848) 3 Cox CC 248, R v Webb (1848) 1 Den 338, R v Holmes (1853) 1 Dears 207, Elliot and White (1861) Le & Ca 103 and Farell (1862) 9 Cox CC 446. Those cases established that if the offence of outraging public decency was to be proved, it was necessary to prove two elements: first, that the act was of such a lewd character as to outrage public decency; that element constituted the nature of the act which had to be proved before the offence could be established.
Second, that it took place in a public place and was capable of being seen by two or more people who were present, even if they had not seen it. That constituted the public element of the offence which had to be proved.
There was some discussion about whether or not the Sexual Offences Act 2003 (SOA 2003), s 67 covered the acts committed by the defendant; the issue of whether it did or not was not relevant. The actions of the defendant were committed before SOA 2003 came into force. It was, however, important to state that “voyeurism” as such was not a criminal offence.
His lordship therefore turned to apply the two elements of the offence established by the 19th century cases to this case.
As to the first element, an obscene act was an act which offended against recognised standards of propriety and which was at a higher level of impropriety than indecency. It was clear that the act done by the defendant was capable of being judged by a jury to be a lewd, obscene or disgusting.
It was not enough that the act was lewd, obscene or disgusting and that it might shock people; it had to be of such a character that it outraged minimum standards of public decency as judged by the jury in contemporary society.
As to the second element—the public element, his lordship accepted that it first required that the act was done in a place capable of public view. It was not, however, satisfied unless the act was capable of being seen by two or more people who were actually present, even if they did not actually see it (the two person rule).
The question arose about whether or not it was necessary that one person actually saw the nature of the act. In his lordship’s view, it was necessary to have regard to the purpose of the two person rule; it went solely to the necessity that there was a public element in the sense of more than one being present and capable of being affected by it. There was no reason to confine the requirement more restrictively and require actual sight or sound of the nature of the act. The public element in the offence was satisfied if the act was done where people were present and the nature of what was being done was capable of being seen; the principle was that the public were to be protected from obscene or disgusting acts which were of a nature that outraged public decency and which were capable of being seen in public.
A person committing such an act might wish as much privacy as possible, if there was a possibility of them being discovered in public, it would nonetheless be an offence. Looking therefore at the purpose of the two person rule, it could be satisfied if there were two or more people present who were capable of seeing the nature of the act, even if they did not actually see it. Moreover, the purpose of the requirement that the act be of such a kind that it outraged public decency went to setting a standard which the jury had to judge by reference to contemporary standards; it did not require that someone saw the act and was outraged.
Thus in this case, although no one saw the defendant filming, there was evidence from the videos that there were others present. Whether on fact the way in which the defendant filmed up the skirts of the women was capable of being seen, was a question for the jury. The jury was entitled to convict the defendant. The appeal against conviction would therefore be
dismissed.
