Simplification of Criminal Law: Public Nuisance and Outraging Public
Response by Chris Ashford, Principal Lecturer in Law, University of
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).
2.1 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
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
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  EWCA Crim 2062,  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
3.7 The following sections address the areas of proposals set out in the
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
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
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
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
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  Crim LR 615, like R v Mayling  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
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.