The defendant had been naked, filming children playing. He had not been seen doing so. The court considered whether a conviction for disorderly conduct under section 5 required the presence of a third party. It was an express finding by the court that the behaviour was not seen by anybody else.
Held: The defendant’s appeal was allowed.
Collins J said: ‘I do not believe it to be necessary that the prosecution call a person or persons who can say that they did see what was happening. The evidence must be sufficient, so that the court can draw the inference, having regard to the criminal standard, that what he was doing was visible to or audible to people who were in the vicinity at the relevant time.’
Silber J spoke of the words ‘within the sight of’: ‘These words mean that some person must have actually seen the abusive or insulting words or behaviour. It is not enough that somebody merely might have seen or could possibly have seen that behaviour.’
Collins J: ‘The question then is what is meant by the words ‘within the hearing or sight’ of a person. I entirely agree that it is not sufficient to establish that someone might have come on the scene and therefore might have seen what the individual who is charged was doing. I assume, in what I say now, that whatever he was doing was threatening, abusive or insulting within the meaning of the section.
What, in my view, is required is that there is at least evidence that there was someone who could see, or could hear, at the material time, what the individual was doing. There is, in my judgment, on the facts of this case, a clear distinction to be drawn between what might have happened if someone had come on the scene and what in fact did happen.’ and
‘It may be that what I am saying goes to the evidence which has to be called in order to establish this offence because I do not believe it to be necessary that the prosecution call a person or persons who can say that they did see what was happening. The evidence must be sufficient, so that the court can draw the inference, having regard to the criminal standard, that what he was doing was visible to or audible to people who were in the vicinity at the relevant time. Provided that is established this offence can be made out.’
Judges:
Silber J, Collins J
Citations:
[2004] EWHC 2621 (Admin)
Links:
Statutes:
Cited by:
Cited – Taylor v Director of Public Prosecutions Admn 28-Apr-2006
The defendant appealed conviction for racially aggravated use of threatening abusive or insulting words or behaviour. She said that apart from the police there was nobody else about to give rise to any risk of distress.
Held: It was a quiet . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 27 June 2022; Ref: scu.219535