SEX acts cannot outrage public decency if they are captured only by closed-circuit television and not seen actually taking place by passers-by.

Keith Rose has been cleared of the offence of outraging public decency because the only witness to his sexual conduct was a CCTV camera in the foyer of a bank.

The homeless man thought no one was around when he had oral sex with his girlfriend in the foyer of a Lloyds TSB bank in Sheffield this year. He said that he and his girlfriend had “forgotten about the camera”; but footage from the CCTV camera was viewed by Helen O’Rourke, the branch manager, when she arrived at work the next morning. Mrs O’Rourke referred the incident to the police and in February Mr Rose, who is in his forties, was convicted of “outraging public decency” in the bank foyer.

A district judge at Sheffield Magistrates’ Court found that the bank manager was a witness to an act that was “of such a lewd, obscene and disgusting nature as to constitute an outrage of public decency”. The judge also added that it would have been possible for a passer-by to have seen what went on, had there been one.

Mr Rose was fined £50 and ordered to pay £75 in costs.

His barrister, Peter Weatherby, of Garden Court North Chambers, appealed to the High Court in London, arguing that public decency could not be outraged as there was no member of the public present to witness the behaviour.

Mr Justice Burnton agreed that it was not enough that Mrs O’Rourke had seen the couple on the CCTV camera, some hours after the event.

He said that there “had been no act which actually outraged public decency since there had been no public to outrage”.

Peter Mahy, Mr Rose’s solicitor at Howells, said: “The High Court allowed the appeal and quashed the conviction on the basis that such an offence had to be witnessed, and that there had to be others actually present who could see the act.

“The court also further doubted whether the bank manager was a ‘witness’ as she had viewed the footage historically, the essence of the event being that it was committed in public.”

He added: “The case is legally important as it clarifies the elements of this common-law offence. The practical effect 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.”

Gary Slapper, the director of the Open University law programme, said: “The offence of outraging public decency derives from an historic role of the courts to act as protectors of public morality.

“A wide range of conduct had been caught by the offence, including a schoolmaster ‘behaving in an indecent manner with a desk’ in front of two boys, and the exhibition in a gallery of earrings made from freeze-dried human foetuses”.

The professor added that when it came to sex, the law tended to take a similar line to that of the Edwardian actress Mrs Patrick Campbell, who said that “it doesn’t matter what you do in the bedroom as long as you don’t do it in the street and frighten the horses”.

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