Sexual activity in public

We do get enquiries about whether or not the new sexual offence laws in the Sexual Offences Act 2003 cater for sexual activity in public. One officer told me that she, along with her colleagues, had an issue with a particular vehicle lay-by that was used by the passing public as well as those intent on a variety of sexual activities. She wondered whether there was a specific offence in the new Act, which catered for the complaints that arose from these `goings on`.

The original bill had catered for such problems, but the press pointed out that the offence was so wide that it could become a criminal offence to have a bit of what you fancy in the privacy of the park shrubbery at 2am. The Government backed down.

So, what offences are available?

The new offence of indecent exposure of male or female genitals (section 66) seems the most obvious, but there must be an intentional exposure intended to alarm or distress the person who observes the activity.

You could also consider the common law offence of outraging public decency. This must be an act of a lewd, obscene and disgusting nature, which is capable of outraging public decency, in a public place, where at least two members of the public have witnessed the act.

In order to outrage (in these particular circumstances), exposure of the person must transgress accepted limits of decency and be likely to gravely offend a reasonable person.

The members of the public who actually come across the scene don`t necessarily have to be outraged (they may be very broad minded), but you need to prove that if they had been of a `reasonable` disposition, they would have been outraged by the conduct. It should be borne in mind that the Act is asexual, there is no distinction made any more between hetro/homo sexuality. There must also be evidence of the location being a public place at the time of the offence. So, having sex stark naked in London`s Kew Gardens on a sunny weekend (in full view) is pretty certain to be sufficient. That would be fairly easy to prove, it becomes much more difficult if the couple are trying to be discrete and their conduct is only on the boundaries of bad taste. (All of this is subject to the Park`s bye-laws, or anything in the Metropolitan Police Act, which I haven`t checked because this was just an example).

Perverting Justice

The phraseology of the offence of `perverting the course of justice` still causes some problems, because it is traditionally referred to as `attempting to pervert the course of justice`. However, in a 1991 case, it was decided that the word `attempting` was misleading. A better expression for the offence would be `endeavouring to pervert the course of justice`. It was not necessary to charge a person with attempting to commit this offence under the Criminal Attempts Act 1981, or anything else for that matter (R v K J Williams (1991) 92 CrAppR 158).

I suppose the next question is to ask whether or not you can `attempt to endeavour to pervert the course of justice`!

Something else that you may need to consider is the comment by the court in cases like R v Sookoo 2002. A shoplifter gave a false name to the police, which was initially accepted by them. He was then charged with theft and bailed. He was re-arrested several weeks later and put before a court, charged with both the theft and the above offence.

The Court of Appeal said (and the comment below is modified to help summarise the point):

Where, as here, an offender had attempted to hide his identity and inevitably failed, the prosecutors should not normally include a specific count of perverting the course of justice. The offender`s conduct may serve to aggravate the original offence and the judge may well think it right to increase the sentence by an appropriate length.

There are cases, which include serious aggravating features to try and pervert the course of justice. There will be cases where a great deal of police time and resources are involved in putting the matter right, or there may be cases where innocent members of the public h