Outraging public decency

Public decency is a level of behaviour which is generally acceptable to the public and is not obscene, disgusting or shocking for the observers.

Outraging public decency is an indictable common law offence which is punishable by unlimited imprisonment and/or an unlimited fine. To be guilty of this offence:

• you must carry out an act which is lewd, obscene or of disgusting character, which outrages minimum standards of public decency as assessed by the jury;
• the act must take place in a public place, or a place which is accessible to, or within view of, the public;
• the act must take place in the actual presence of two or more persons who are capable of seeing it – it is irrelevant whether these people actually saw the act or were outraged by it.

Section 5(3) Criminal Law Act 1977 preserved the common law offence of conspiracy tending to corrupt public morals or outrage public decency. A person can be found guilty of this offence if they make an agreement with another person to engage in conduct which outrages public decency, but which does not amount to or involve the commission of an offence if carried out by a single person otherwise than in pursuance of an agreement.

In its 2015 report Simplification of Criminal Law: Public Nuisance and Outraging Public Decency (Consultation Paper No. 193), the Law Commission recommends reforming the outraging public decency laws, which includes adding a mental element of intent or recklessness. The new offence would be:

• an act or display;
• which is obscene or disgusting to an extent which outrages minimum standards of public decency in contemporary society;
• in a place accessible to (or within view of) the public;
• where the defendant knew of the nature of the act or display (or was reckless as to what it was) and knew or intended that it would be in a place accessible to or within view of the public.

The Commission also recommend a defence of reasonableness, and renaming the offence ‘seriously offending public decency’. The government has yet to respond to the report.

If you intentionally expose your genitals, and you intend that someone will see them and be caused alarm or distress, you would be guilty of the criminal offence of exposure under s 66 of the Sexual Offences Act 2003 (SOA 2003). This carries a sentence of up to six months in prison or a fine on summary conviction, or imprisonment for up to two years on indictment.

If you are caught ‘engaging in sexual activity in a public lavatory’ you would be guilty of a criminal offence under s 73 of SOA 2003. This applies to heterosexual and homosexual sex acts. The offence of ‘cottaging’ (as it is commonly known) carries a maximum prison sentence on summary conviction of up to six months and/or a fine.

You will be guilty of an offence under the Obscene Publications Act 1959 if you publish an obscene article (or have an obscene article for publication for your or someone else’s gain). If found guilty, you can be jailed for up to six months or fined on summary conviction or fined and/or jailed for up to five years on indictment.

To publish means distributes, circulates, sells, hires, gives, lends, or offers for sale or for hire; or, in the case of films or records, shows, plays or projects it; or, where the matter is data stored electronically, transmits that data. Obscene means something that tends to deprave and corrupt persons who are likely to read, see or hear it. An article means anything that can be read or looked at or both, any sound record, and any film or other record of a picture or pictures.

You have a defence for this offence if you can show that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.