Outraging public decency

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

History[edit]

Definition[edit]

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

  1. The act was of such a lewd character as to outrage public decency; this element constituted the nature of the act which had to be proved before the offence could be established, and
  2. it 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 had not actually seen it.

Usage[edit]

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

Notable criminal prosecutions[edit]

The foetus earrings case[edit]

In December 1987, artist Rick Gibson exhibited a pair of earrings made with freeze-dried human foetuses at the Young Unknowns Gallery in south London, England. On Thursday, 3 December 1987, the sculpture was 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 a charge of outraging public decency had been preferred in over 80 years. [6]
The trial started on Monday, 30 January 1989 at the Old Bailey in central London. 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 charge of public nuisance was dismissed.[11]

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

On Tuesday, 9 February 1989, a 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 count of outraging public decency, was dismissed by the Court of Appeal who upheld the trial judge's ruling and went some way to re-stating the law in this area.[17]

References[edit]

  1. ^ a b Halsbury's Laws of England 5th edition, volume 26, paragraph 717
  2. ^ a b "Simplification of Criminal Law: Public Nuisance and Outraging Public Decency (Consultation Paper No 193)". 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, United Kingdom): 3 
  6. ^ Artist charged over foetuses, Daily Telegraph (London, United Kingdom), 11 March 1988: 2 
  7. ^ Bowcott, Owen (31 January 1989), Artistic merit defence ‘should be open to foetus earring pair’, The Guardian (London, United Kingdom): 2 
  8. ^ Mills, Heather (31 January 1989), ‘Foetuses as art’ case hinges on common law, The Independent (London, United Kingdom): 3 
  9. ^ Mills, Heather (1 February 1989), Foetal jury told to decide ‘decency’, The Independent (London, United Kingdom): 3 
  10. ^ Weeks, John (1 February 1989), Foetus earrings ‘an outrage’, Daily Telegraph (London, United Kingdom): 3 
  11. ^ Wolmar, Christian (7 February 1989), Nusiance charge in foetus case dismissed, The Independent (London, United Kingdom): 3 
  12. ^ Mills, Heather (10 February 1989), Artist and curator fined for display of foetus earrings, The Independent (London, United Kingdom): 3 
  13. ^ Lister, David (10 February 1989), Gallery has history of artistic controversy, The Independent (London, United Kingdom): 3 
  14. ^ Bowcott, Owen (10 February 1989), Foetus artist fined £500 for sculpture, The Guardian (London, United Kingdom): 3 
  15. ^ Weeks, John (10 February 1989), Art pair fined over foetus earrings, The Daily Telegraph (London, United Kingdom): 3 
  16. ^ Foetus earrings outraged decency, The Times (London, United Kingdom), 10 February 1989: 3 
  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.