Court of Appeal, Criminal Division
Published October 16, 2007
Regina v Hamilton
Before Lord Justice Thomas, Mr Justice Aikens and Dame Heather Steel
Judgment August 16, 2007

The two-person rule applicable to the common-law offence of outraging public decency was capable of being satisfied if there were two or more persons present who were capable of seeing the nature of the act even if they did not actually see it.

The Court of Appeal, Criminal Division, so held in a reserved judgment dismissing the appeal of the defendant, Simon Austin Hamilton, against conviction on April 27, 2006 at Canterbury Crown Court (Judge Wil-liams and a jury) of, inter alia, five offences of outraging public decency contrary to common law. He was sentenced, for the offences now appealed, to concurrent nine-month prison terms.

The defendant had surreptitiously placed a video camera in his rucksack when he was in supermarkets in order to film up the skirts of certain women. None of the victims had seen the defendant filming.

On appeal, the defendant contended that the offence of outraging public decency was confined to cases where a lewd act was in fact witnessed by at least one person; and the public element was satisfied if, in addition, at least one other person witnessed, or could have seen, the act.

He thus asserted that, where no one had seen him in the act of filming, no one had seen a lewd act, and accordingly public decency could not have been outraged. Mr Anthony Chinn, QC and Mr Trevor Siddle, both assigned by the Registrar of Criminal Appeals, for Hamilton; Mr James Townend, QC and Mr Andrew Jones for the Crown.

LORD JUSTICE THOMAS, giving the judgment of the court, said that the relevant common-law offence involved two key elements: First, it had to be proved that the act was of such a lewd, obscene or disgusting character that it outraged public decency; and in the instant case it was clear that the act was one which was capable of being adjudged by a jury to be such an act; and the jury had been entitled to find that it was such an act even if no one saw the defendant carrying it out.

Second, it had to be shown that the act took place in a public place and that it was capable of being seen by two or more persons present even if they had not actually seen it.

In all the authorities cited, at least one person had seen the nature of the act, in contrast to the instant case, so that it was to be asked whether it was a rule of law that one person must actually see the nature of the act.

The answer was in the negative: the two-person rule went to the necessity that there be a public element in the sense of more than one person being present and capable of being affected by it. There was no reason to confine the requirement more restrictively and require actual sight, or indeed sound, of the nature of the act.

Furthermore, the purpose of the requirement that the act be of such a kind as to outrage public decency went to setting a standard which the jury had to adjudge by reference to contemporary standards, and it did not require that someone in fact saw the act and was outraged.

On the facts, although no one had seen the defendant filming, there was evidence from the videos that there were others present; and it could not be said that that type of filming was incapable of being seen.

The jury must accordingly have concluded that the way in which the defendant filmed was capable of being seen by those in the supermarket.

Solicitors: Crown Prosecution Service, Canterbury.

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