No: 201003302 D5
Neutral Citation Number: [2010] EWCA Crim 2243
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Friday, 17 September 2010
 
B e f o r e:

LORD JUSTICE HOOPER 

MR JUSTICE FLAUX 
 
MR JUSTICE SPENCER 
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Prosecution application for leave to appeal against a terminating ruling under s.58 Criminal Justice Act 2003 

R E G I N A 

v 

F
 
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Mr S Uttley appeared on behalf of the Prosecution/Applicant

Mr R Frieze appeared on behalf of the Defendant/Respondent
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J U D G M E N T
1.	LORD JUSTICE HOOPER:  Flaux J will give the judgment of the court.
2.	MR JUSTICE FLAUX:  The respondent, F, faced trial at Leeds Crown Court before HHJ Grant on an indictment containing one count of outraging public decency contrary to common law.  Before the trial commenced, it was agreed between the prosecution and the defence that the judge would be invited to make a ruling in relation to the application of the so‑called two‑person rule in cases of outraging public decency.  The rationale for this was that there was no merit in calling evidence and having a submission of no case to answer at the end of the prosecution case if the merits of that submission were unlikely to be affected by the evidence called at trial.  
3.	On 16 June 2010 the matter came before HHJ Grant for determination of the question whether, on the basis that the evidence of Mrs Margaret Howard (the prosecution witness) stood in the form of her witness statement, the case would get past the end of the prosecution case on the current state of the law.  
4.	It is important to emphasise that, as was accepted by counsel on behalf of the defendant before us, Mr Frieze, and Mr Uttley of counsel, who appeared on behalf of the prosecution in this court although he did not appear before the learned judge, the case therefore proceeded before the learned judge on the basis that Mrs Howard's statement was effectively the agreed facts in the case and that there were no more facts.  On that basis, having considered the statement and heard the argument, the learned judge then ruled that the two‑person rule was not satisfied on that evidence and that the trial should not proceed.  
5.	The prosecution seek leave to appeal that ruling under section 58 of the Criminal Justice Act 2003 on the basis that it was a terminating ruling.  The application was referred to the full court by the Registrar on the understanding that if the application were granted, the court would proceed to hear the appeal.  We will grant leave to make this application and we have heard the appeal.  
6.	The circumstances of the incident which led to the indictment as described in Mrs Howard's witness statement are as follows.  Mrs Howard's house is in a street with local playing fields on the other side of the road.  The fields are used by local football teams of young boys aged about 6 to 8.  On 1 July 2009 at about 6.15pm she was at home and could see that there was a football team of young boys training on the fields.  She noticed a car pulling up and parking outside her house.  She thought it was a parent who had arrived early to collect one of the boys, as the training session finishes at about 6.45.  10 or 15 minutes later she looked out of her bedroom window and saw the same blue car outside her house.  
7.	A man, later identified as the respondent F, was inside masturbating with his right hand and feeling his chest with his left hand.  She says in her statement that while doing this people were driving down the road or had come out from their houses.  At these points the male would turn to the passenger seat, picking up a sheet of paper that was the size of A3 folded in half, and opening the paper up to cover himself.  When there was no more movement in the street he would continue to masturbate.  During this whole incident the male, while masturbating, was watching the children playing football.  
8.	Later in her statement she says this: 
"This whole incident from me noticing what he was doing lasted about 10 minutes; from my bedroom window when I could see clearly what he was doing it was a distance of 18/20 feet.  When observing the male I had a clear unobstructed view.  I do not know this male.  I think I would recognise this male again."  
9.	This was the only evidence the court had of the respondent masturbating and ceasing to masturbate was during the period that Mrs Howard was observing him ‑ that is to say that ten‑minute period.  
10.	In making his ruling that the two‑person rule was not satisfied in this case, the learned judge referred to and applied the law on this point as most recently expounded by Thomas LJ in the judgment of this court in R v Hamilton [2007] EWCA Crim 2062.  After a detailed and careful analysis of all the cases, particularly the 19th century cases as elucidated by the more modern cases, Thomas LJ identified the two elements of the offence of outraging public decency.  The first element concerns the nature of the Act and the need for proof that it was of such a lewd, obscene or disgusting character as to outrage public decency.  It was not in dispute in the present case that this element was satisfied.  The debate centred on the second element, the so‑called public element, in relation to which Thomas LJ said this at paragraph 31 of the judgment:  
"31. As to the second element ‑ the public element ‑ its precise ambit was the principal issue discussed in most of the cases. 
i) We accept that the public element first requires that the act done in a place to which the public has access or in a place, as set out in Walker where what is done is capable of public view. The filming by the appellant was done in a supermarket – a place to which the public had access – and in a place where what was done was capable of being seen. On either basis this part of the public element was satisfied.
ii) The public element is not, however, satisfied unless the act is capable of being seen by two or more persons who are actually present, even if they do not actually see it (what is conveniently described by Rook and Ward as the two person rule). It was the scope of the two person rule that was the subject to which the submissions in this appeal were principally directed."
11.	Later in his judgment at paragraph 39, Thomas LJ expanded on that point, having dealt with the further argument in the subsequent cases, by saying this: 
"The public element in the offence is satisfied if the act is done where persons are present and the nature of what is being done is capable of being seen; the principle is that the public are to be protected from acts of a lewd, obscene or disgusting act which are of a nature that outrages public decency and which are capable of being seen in public.   As was pointed out in Bunyan and Morgan, a person committing such an act may wish as much privacy as possible, if there is a possibility of them being discovered in public, it would nonetheless be an offence."
12.	In applying the second part of this public element, the so‑called two‑person rule, the learned judge in the present case concluded that it was not satisfied in these terms at pages 19 to 20 of the transcript:  
"... it is perfectly plain from the evidence of ... Margaret Howard, which is the only evidence which the Crown have, that when people other than herself were seen to be present by her, on each occasion that that occurred the defendant stopped indulging in the act and covered himself with a sheet of paper that was clearly placed on the seat next to him for that purpose.  And it seems plain to me that although these people were present, they were not capable of seeing the act in which he was indulging because on each of the occasions that they were observed to be present by ... Mrs Howard, he ceased the act in which he was engaged and covered himself up. 
So ... the evidence available, therefore, does not in my view satisfy the requirement that at least two people are present and capable of seeing the nature of the act and being affected by it." 
13.	In our judgment, given that there is no question of the learned judge having failed to apply the law correctly as set out in Hamilton, the only basis upon which we could reverse this ruling would be if we were of the view that that conclusion was a conclusion that no reasonable judge could reach.  
14.	It seems to us that, although we ourselves would not, in the particular circumstances of this case, have necessarily gone down this route given that the question of whether or not people passing by might have seen what the defendant was doing was quintessentially a question for the jury, the fact is that here, for better or worse, both parties agreed to proceed on the basis of what were, in effect, agreed facts.  
15.	It seems to us that, on the basis of those agreed facts as set out in Mrs Howard's witness statement, and although if one were standing back and looking at this generally one might say that there was an element of unreality to the suggestion that nobody else could have seen the defendant masturbating, the fact is that Mrs Howard's evidence is that whenever there was anybody else hoving into view, the defendant covered himself.  Therefore, for us to seek to go behind those agreed facts and to say that there must have been a possibility of people seeing the defendant masturbating would amount to impermissible speculation.  
16.	It follows that, on the basis on which both parties proceeded, there are no grounds for overturning the learned judge's ruling and we dismiss this appeal.
17.	MR UTTLEY:  My Lords, in relation to the matter, section 61(3) of the Criminal Justice Act 2003 states that where the Court of Appeal confirms the ruling, it must in respect of the offence or each offence which is subject of the appeal order that the defendant in relation to the offence be acquitted of that offence.
18.	LORD JUSTICE HOOPER:  We so order.
19.	MR UTTLEY:  I am grateful, my Lords.  
20.	LORD JUSTICE HOOPER:  Anything more, Mr Frieze? 
21.	MR FRIEZE:  No, thank you.  I believe that the defendant's representation is covered by the Crown Court order because it is still part of the trial.
22.	MR JUSTICE FLAUX:  If it is necessary to have a representation order, we will make one. 
23.	MR FRIEZE:  Thank you.