Simplification of Criminal Law: Public Nuisance and Outraging Public Decency

Response by Chris Ashford, Principal Lecturer in Law, University of Sunderland

1. BACKGROUND

1.1 Chris Ashford is a Principal Lecturer in Law at the University of Sunderland. He teaches law and sexuality and human rights/law and society. He has published internationally in the field of law and sexuality. In addition, he has spoken on the subject of law, sexuality and the criminal law to academic audiences in the UK, USA, Canada and Australia. He has also advised a range of community and out-reach groups on matters pertaining to law and sexuality.

He is currently working on the monograph Public Sex and the Law: Silent Desire, to be published by Routledge-Cavendish (ISBN: 978-0415-55287-5).

2. SUMMARY

2.1 This response focuses around the proposals relating to outraging public decency and although it shares the recognition of the consultation document that outraging public decency relates to a diverse range of situations (paragraph 3.2), it focuses upon the application of the offence to public sex environments (PSE’s) and the criminalisation of public sex acts. It will not seek to re-state the law in this area as that has been substantially covered in the consultation document.

2.2 The Law Commission’s four aims of simplification (paragraph 1.1) should be welcomed. The area of outraging public decency is in urgent need of legal reform and simplification. As it is presently formulated, it is both complex and contradictory. This has the effect of creating confusion for both the public and police. Relatively modest legal change could bring clarity to the area of public sex and the offence of outraging public decency.

2.3 On the central proposal (paragraph 1.15) that the prosecution be required to prove that the defendant intended a public nuisance or outrage to public decency to occur, or was reckless as to whether his or her conduct would amount to, or cause, such an occurrence, this is broadly welcomed although clarification is needed regarding the fault element and a clear statement as to whether the police themselves would constitute the public for outrage purposes. This response further explores these issues in the context of the specific recommendations made by the Law Commission.

3. PUBLIC SEX: AN OVERVIEW

3.1 Public sex continues to receive the attention of the media and the police. The emergence of the Internet has enabled journalists to easily search for locations in which public sex activity takes place and then ‘expose’ these locations.

3.2 That such exposures are ‘news’ reflects the fact that these locations were not previously widely known of and that most public sex activity was therefore discrete.

3.3 Public sex has a number of terms applied to it: dogging, in which ‘straight’ couples engaging in sex in their cars, inviting other members of the public to view and/or participate, ‘cottaging’, whereby men will engage in sexual acts in a public lavatory and cruising, again a male activity, often in parks or other open air spaces in which men will seek out sexual encounters.

3.4 Policing approaches to the phenomenon of public sex vary throughout England and Wales. Some police forces appear to be disinterested in devoting police resources into monitoring/policing public sex environments whilst others appear considerably less hesitant in deploying their resources. The correlation with public concerns is unclear. Although the police often state public concern as a reason for high profile policing (often in response to pieces in the media mentioned earlier), a lack of public concern, or public pressure for a different approach is never given as a reason for those areas where the police appear to have interpreted the law so as to not require the policing of PSEs.

3.5 In October 2008, the Association of Chief Police Officers (ACPO) issued draft guidance on the policing of public sex. This advice, including recognition of the complexities of public sex environments, sought to largely shift the focus of policing to creating safe spaces rather than focusing upon the criminalisation of those engaged in public sex environments. Unfortunately, the draft guidance was miss-represented in the media and, following extensive media attention, was removed by ACPO. Further guidance does not appear to have been issued. This incident is reminder that this remains an emotive and controversial issue, but it also highlights that the police do recognise the need for change in this area of policing and law.

3.6 Unlike the facts of R v Hamilton [2007] EWCA Crim 2062, [2008] QB 224 explored in the consultation document, public sex encounters involve those who are consenting to an encounter or to witness an encounter and so the consultation must take account of how the law will respond to the consensual as well as the non-consensual. Indeed, both historically and contemporaneously, it appears that with most instances of public sex that do outrage public decency, the only members of the public outraged are the police officers that have devoted resources to monitoring an identified public sex location.

3.7 The following sections address the areas of proposals set out in the consultation document.

4. WHETHER THE OFFENCE IS STILL NECESSARY

4.1 The consultation document notes that ‘like other offences with an environmental flavour, outraging public decency exists to protect a right to public amenity’ (paragraph 4.33) and further that ‘the offence is designed to

protect the public from witnessing disgusting sights and sounds, and is not a catch-all tool for the endorsement of morality’ (paragraph 4.37).

4.2 Although these statements seem broadly correct, the moral component cannot be fully separated. Whether a sound or sight is indeed ‘disgusting’ or rather whether someone is ‘outraged’ is a moral judgment. We are (broadly speaking) not said to be outraged at viewing sexual scenes or hearing sexual sounds on evening television and yet, if there was a possibility that we were to hear or see such images/sounds in a distant field, that would be an offence. Such a distinction is not based on logical legal reasoning but rather an absurd moral contradiction.

4.3 Paragraph 4.41 of the consultation suggests that there may be reason to reform the Sexual Offences Act. The existence of section 71 of the Sexual offences Act 2003 in relation to those acts in a public lavatory is a clear example of why the law relating to outraging public decency must be viewed alongside, and in conjunction with, statutory offences that overlap with this area. Section 71 remains as a quirk of history and a reformed common law offence of outraging public decency would render it unnecessary. Moreover, one could argue that even with no change to the common law, the statutory offence is unnecessary.

4.4 On the recommendation that the offence of outraging public decency be retained, and that its conduct element should remain in its present form as laid down in Hamilton, it is agreed that an offence of outraging public decency should remain.

4.5 However, such an offence must balance the interests of as many parties as possible, recognising that consensual acts that members of the public are unlikely to ever see/view should not fall within the scope of the criminal law and should not be a focus for police attention and resource.

4.6 Rather than an act ‘capable of being seen’ as set out in Hamilton (para 39), the law should focus upon the ‘likelihood’ of the acts being discovered by the public. This would bring the common law closer to the statutory offence of exposure (S.66 (1)(b)) contained within the Sexual Offences Act 2003, which requires that ‘he intends that someone will see them and be caused alarm or distress’. Together with the voyeurism offence (s.67) it is perfectly possible on the basis of these two offences alone to criminalise sex in public locations – where alarm or distress is intended to be caused to an individual. Nonetheless, it is arguably possible that there are circumstances that fall beyond this (perhaps were there is an absence of intention) whereby an offence of outraging public decency would be of use.

5. WHETHER THE FACTUAL INGREDIENTS OF THE OFFENCE SHOULD BE REVISED, OR ARE NOW SUFFICENTLY CONSOLIDATED BY CASE LAW SO AS NOT TO NEED FURTHER REFORM

5.1 These are addressed in response to the next question.

6. WHETHER THE FAULT ELEMENT SHOULD BE STRENGTHENED TO REQUIRE INTENTION OR RECKLESSNESS, IN LINE WITH MORE USUAL CRIMINAL OFFENCES

6.1 The recommendation that outraging public decency should be found proved only when D is shown to have acted in the relevant respect intentionally or recklessly moves the law beyond the statutory framework (as discussed above).

6.2 The recommendation that D must be shown to have intended to generate, or realised that he or she might generate outrage, shock or disgust in ordinary people is so broad as to continue to criminalise many acts of public sex that do not in reality affect people, and which will continue to occupy the resources of the police.

6.3 A recommendation that recognised the likelihood of outrage, shock or disgust being caused would be a more pragmatic recommendation. This would enable the taking into account of the context in which the act takes place – the nature of the location, the time of day and year and so on. For instance, would one want to treat a car park of a local supermarket at 1pm in a school holiday in the same way as an obscure rural picnic area are 1am? I would suggest not.

6.4 The case of R v Reakes [1974] Crim LR 615, like R v Mayling [1963] 2 QB 717, concerned an act of sex in a public lavatory but in this case Lawton LJ directed on the issue of privacy that: ‘you look at all the surrounding circumstances, the time of night, the nature of the place including such matters as lighting and you consider further the likelihood of a third person coming upon the scene’. The Reakes judgment seems a far simpler and clearer statement of how the law should operate in the area of public sex/outraging public decency.

6.5 It would ensure that the law is easier to understand both the public and police. It would protect the public whilst doing so in a pragmatic and measured way.

6.6 Thus a revised recommendation would read: outraging public decency should be found proved only when D is shown to have acted, in the relevant respect, intentionally or recklessly with regard to the outraging of public decency. That is, D must be shown to have intended to generate, or realised that he or she is likely to generate, outrage, shock or disgust in ordinary people, giving full consideration to the surrounding circumstances.

7. WHETHER IT IS DESIREABLE IN PRINCIPLE, AND OPPORTUNE AT PRESENT, TO RESTATE THE OFFENCE IN STATUTORY FORM

7.1 The assertion in the consultation document that ‘we are strongly of the view that defining the offence by statute is desirable in principle’ (paragraph 6.2) is a sound one.

7.2 Rather than seeking to codify a version of existing definitions, there is an opportunity to codify a clearer definition that better reflects the social realities of the Twenty-first Century.

7.3 It is right, as stated in paragraph 6.13 of the consultation, that work will need to be done to produce a workable statutory definition. A wide consultation should take place on such a definition – including scholars and those groups affected by, or likely to be affected by, any definition.

7.4 The definition – with its inclusion of ‘likely’ – is a good starting point (a) although the circumstances element in (b) could be further clarified along the lines discussed earlier in this submission. Further exploration/discussion of these definitions would be welcomed.

7.5 The proposal to amend the Criminal Law Act 1977 so as to abolish the common law offence of conspiracy to outrage public decency is welcomed.

8. FURTHER INFORMATION ON POLICING, THE LAW AND PUBLIC SEX:

Ashford, C (2007) ‘Sexuality and the Criminal Law: The Cottaging Phenomenon’, 71(6) Journal of Criminal Law, 506. Ashford, C (2006) ‘The Only Gay in the Village: Sexuality and the Net, 13, 3 Information and Communications Technology Law, 275.Johnson, P (2007) ‘Ordinary Folk and Cottaging: Law, Morality and Public Sex’, 34(4) Journal of Law and Society 520.