The defendants appealed their convictions for exposing themselves on Wandsworth Common. The indictment charged them with doing so in the ‘sight and view’ of divers others. There was evidence that they had sexual intercourse on the common, but not that it was seen by anyone other than a single witness or within the possible sight and view of anyone else who was shown to be there. Though their act could have been seen by others on the common or a public footway or footbridge, there was no evidence that there were persons on the common or the footway or footbridge at the time. The jury were directed that they could convict if the acts could be seen without difficulty by others. They argued that the exposure had to be public in the sense of being to the offence or injury of more than one person. The Crown argued that an indecent exposure was indictable whether seen by others or not, as they exposed themselves where they might have been seen.
Held: Although one judge suggested that all open lewdness was indictable as outraging public decency, the argument centred on the question whether a conviction could be upheld, as there was no evidence that anyone other than the single witness was passing at the time and therefore might have seen it. The court of 5 judges disagreed amongst themselves; it was to be re-argued, but the report notes that the court subsequently decided that it was not desirable to do so and no judgment was delivered.
Weightman J noted: ‘The case depends on this question, Could the parties be convicted if no one saw them, as for instance, upon their own confession merely?’
Judges:
Weightman J
Citations:
(1861) Le and Ca 103
Jurisdiction:
England and Wales
Cited by:
Cited – Hamilton, Regina v CACD 16-Aug-2007
The defendant appealed his conviction for outraging public decency. He had surreptitously filmed up the skirts of women in a supermarket. The offence was only discovered after the films were found on a search of his home for other material. The . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 24 November 2022; Ref: scu.258782