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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Birch, R. v [2007] EWCA Crim 1914 (18 July 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/1914.html Cite as: [2007] EWCA Crim 1914

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London WC2
		18th July 2007

1. THE VICE PRESIDENT: On 9th October 2006 in the Crown Court at Chester, the applicant pleaded guilty to committing an act of outraging public decency. On 30th October 2006 he was sentenced to 3 years' imprisonment. He makes application in effect to vacate his plea and for leave to appeal against the conviction which has been referred to the Court by the Registrar.
2. The circumstances which gave rise to the charge were that in the early hours of the morning of 24th July 2006, the applicant was captured on closed circuit television with his penis exposed, masturbating at a bus stop in Chester. As he was doing so a woman walked past. The applicant was thereafter tracked on closed circuit as he followed the woman through the city centre. It was clear that he was attempting to ensure that the woman did not notice that she was being followed. At one point he took out his penis from his trousers as he was following her. He was seen to hide in shop doorways.
3. The person who was viewing the CCTV was clearly concerned that this might have been the precursor to an attack. Fortunately a police vehicle came into view at one point and eventually the police arrested the applicant. The woman herself was never traced and we hope was unaware of the pursuit.
4. The application before us today is based simply and solely on the proposition that the only person who saw the acts which are said to have been acts outraging public decency was the person who was viewing the matter on the CCTV and that it is settled law, as recognised by this Court in Rose v Director and Public Prosecution [2006] EWHC 852, that an essential element of the offence is that the public should have been outraged, not simply one individual.
5. The courts have consistently applied the rule to that effect by stating that what must be proved is that more than one person could have seen the act which is said to have outraged public decency.
6. The evidence on the CCTV camera footage, it is said, does not support the proposition that anybody other than the viewer of the CCTV pictures could have seen what this applicant did. That submission is wholly unrealistic. This was the middle of Chester, at a time when undoubtedly people were passing. Whether they in fact saw this appellant masturbating, or when he exposed his penis at the later stage is not a matter which has to be established in order for the prosecution to succeed. He was masturbating in a situation where, although the bus stop is one where one side of it obscured, was otherwise open to public view and we know people were in fact in the vicinity. Quite apart from that, it seems to us to be unrealistic to say that the woman herself was not somebody who was capable of having seen what he did at either of the points about which complaint is made. We do not consider that the material before this Court could in any way justify the conclusion that the plea was one which should be vacated. In those circumstances the application is refused.