Appeal against conviction clarifies offence of “doing an act outraging public decency”
17 March 2006
On 16th March 2006 the High Court heard Rose v DPP  EWHC 852 (Admin), a “case stated” appeal from Sheffield Magistrates Court that concerned Keith Rose, a homeless man in his 40s, who had been charged and convicted of doing an act outraging public decency. At 1am on 2 February 2005 he had engaged in an act of oral sex with his girlfriend in a bank foyer. No one witnessed the intimacy, but unfortunately for Mr Rose, the bank manager viewed CCTV footage the next day and police were called. The magistrate found that the bank manager was a witness to the act, and that it would have been possible for a passer by to have seen if they had been there. Therefore the offence was made out.
The High Court allowed the appeal and quashed the conviction on the basis that such offence had to be witnessed, and that there had to be others actually present who could see the act. A notional bystander was insufficient, the requirement of publicity was that there had to be more than one person in a position to actually see the act. The court further doubted whether the bank manager was a “witness” as she had viewed the footage historically, the essence of the offence being that it was committed “in public”. If the manager was a witness, when was the offence completed? When the act was done, or when it was viewed at some future point?
The case is legally important as it clarifies the elements of this common law offence, which were somewhat ambiguous on modern authority, and appeared to have been watered down (as evidenced by the narrative on this offence in Archbold 2006).
The practical effect of the decision is that intimacy by consenting partners, and especially homeless people, is not criminal unless done in the presence or sight of two or more members of the public, at least one of whom must witness the act, or if done with the intention to cause alarm or distress to others (which would constitute an offence pursuant to Section 66, Sexual Offences Act 2003 ; “exposure”).
Garden Court North Chambers’ Pete Weatherby represented Mr Rose, instructed by Howells solicitors.