Outraging public decency

Outraging public decency is a common law offence in England and Wales.[1] It is punishable by unlimited imprisonment and/or an unlimited fine.[1]

Definition

Modern case law has established two elements that must be satisfied for the offence to have been committed:[2][3]

  1. the act was of such a lewd character as to outrage public decency; this element constitutes the nature of the act, which has to be proved before the offence can be established, and
  2. the act took place in a public place and must have been capable of being seen by two or more persons who were actually present, even if they did not actually see it.

Usage

The offence is currently prosecuted around 400-500 times per year.[2][4]

Notable criminal prosecutions

The foetus earrings case

In December 1987 an artist, Rick Gibson, exhibited a pair of earrings made with freeze-dried human foetuses at the Young Unknowns Gallery in London. On Thursday 3 December 1987 the earrings were seized by the Metropolitan Police Service.[5]

On Monday 11 April 1988, on the advice of the Crown Prosecution Service, Gibson and the gallery owner, Peter Sylveire, were formally charged with the common law offences of exhibiting a public nuisance and outraging public decency. This was the first occasion on which the charge of outraging public decency had been preferred in more than 80 years. [6]
The trial started on Monday 30 January 1989 at the Old Bailey. The judge was Brian Smedley, Michael Worsley was the prosecuting barrister, and Geoffrey Robertson and Francis Irwin were the defence barristers.[7][8][9][10] On 6 February 1989 the public nuisance charge was dismissed.[11]

A point of law was raised by the defence, which argued that "outraging public decency" was no longer known in law so long after the last occasion on which the charge had been preferred. The judge ruled that it could still be preferred no matter how long the hiatus, provided the facts fitted the offence.

On Tuesday 9 February 1989 the jury found Gibson and Sylveire guilty of outraging public decency. Gibson was fined £500 and Sylveire was fined £300.[12][13][14][15][16]

An appeal by the defence, on the point of the validity of the charge of outraging public decency, was dismissed by the Court of Appeal, which upheld the trial judge's ruling and went some way to restating the law in this area.[17]

References

  1. 1 2 Halsbury's Laws of England 5th edition, volume 26, paragraph 717
  2. 1 2 "Simplification of Criminal Law: Public Nuisance and Outraging Public Decency (Consultation Paper No. 193)" (PDF). Law Commission. Retrieved 14 July 2011.
  3. ↑ [2007] EWCA Crim 2062, [2008] QB 224 para 21 (CA)
  4. ↑ Common Law Offences Charged and Reaching a First Hearing in Magistrates' Courts, Crown Prosecution Service
  5. ↑ Fletcher, David (5 December 1987), "8-Week Foetuses Used to Make Pendant Earrings", Daily Telegraph, London, p. 3
  6. ↑ "Artist Charged Over Foetuses", Daily Telegraph, London, p. 2, 11 March 1988
  7. ↑ Bowcott, Owen (31 January 1989), "Artistic Merit Defence "Should Be Open to Foetus Earring Pair"", The Guardian, London, p. 2
  8. ↑ Mills, Heather (31 January 1989), ""Foetuses as Art" Case Hinges on Common Law", The Independent, London, p. 3
  9. ↑ Mills, Heather (1 February 1989), "Foetal Jury Told to Decide "Decency"", The Independent, London, p. 3
  10. ↑ Weeks, John (1 February 1989), "Foetus Earrings "An Outrage"", Daily Telegraph, London, p. 3
  11. ↑ Wolmar, Christian (7 February 1989), "Nusiance Charge in Foetus Case Dismissed", The Independent, London, p. 3
  12. ↑ Mills, Heather (10 February 1989), "Artist and Curator Fined for Display of Foetus Earrings", The Independent, London, p. 3
  13. ↑ Lister, David (10 February 1989), "Gallery Has History of Artistic Controversy", The Independent, London, p. 3
  14. ↑ Bowcott, Owen (10 February 1989), "Foetus Artist Fined £500 for Sculpture", The Guardian, London, p. 3
  15. ↑ Weeks, John (10 February 1989), "Art Pair Fined Over Foetus Earrings", The Daily Telegraph, London, p. 3
  16. ↑ "Foetus Earrings Outraged Decency", The Times, London, p. 3, 10 February 1989
  17. ↑ R v Gibson and Another. Court of Appeal, Criminal Division.[1991] 1 All ER 439, [1990] 2 QB 619, [1990] 3 WLR 595, [1990] Crim LR 738, 91 Cr App Rep 341, 155 JP 126.
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