If a couple perform a sex act in a lift but no...

If a couple perform a sex act in a lift but no one sees/hears, do they make a sound?

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Well they probably make a sound, but do they commit an offence?

Erm, what are you talking about?

BBC News reported that a man and a woman had attracted the attention of the police recently after apparently engaging in a sex act in a lift. The British Transport Police Press Centre statement said:

PC Kirk Smith said: “A man and a woman were seen to enter the lift which connects the station’s main subway and ticket barriers to platforms 4 through to 7. They remained in the lift for more than ten minutes and, during this time, the woman performed an indecent act on the man.

“This is particularly concerning, as the station was very busy at the time and other passengers could have entered the lift at any time.

“We have conducted a number of enquiries and isolated CCTV images of a man and woman we believe may have important information in relation to this incident.

“If you recognise either individual, or have any information that could assist the investigation, I would urge you to contact police.”

The police have released CCTV images of the pair and are attempting to track them down.

I’ve got some questions…

Yes. Well, there are some holes (oi, keep it clean) in the news report at the moment.

Was there any CCTV in the lift?

If not, how do the police know that an ‘indecent act’ was performed?

How can the police possibly think an offence was committed if no one saw/heard the alleged act?

Isn’t this thoughtcrime? I don’t want to end up in Room 101…

So have they committed an offence? 

There is no offence of having sex in a lift.

But to many it feels like the sort of thing that should be a criminal offence. But when we had a little think about it, we struggled to see exactly what offence would have been committed.

The following can be discounted:

Exposure – Sexual Offences Act 2003 s 66 –

(1) A person commits an offence if—

(a) he intentionally exposes his genitals, and

(b) he intends that someone will see them and be caused alarm or distress.

the couple would not be guilty of this offence because they would of course not have been intending that someone saw them and/or that person be caused alarm or distress.

Sexual activity in a public lavatory – Sexual Offences Act 2003 s 71

(1) A person commits an offence if—

(a) he is in a lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise,

(b) he intentionally engages in an activity, and,

the activity is sexual.

 This, unsurprisingly, only applies to public lavatories. There is no offence of having sex in a lift.

 Harassment, alarm or distress – Public Order Act 1986 – s 5

(1) A person is guilty of an offence if he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

It is unlikely that this would be considered to be disorderly behaviour, but in any event, if no one witnessed ‘the indecent act’ then no offence is committed. In any event, it is a defence that the person(s) had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress (POA 1986 s 5(3)(a)).

So, the most likely candidate…

Outraging public decency – Common law

This offence is somewhat controversial and the Law Commission in the 1970s recommended it be abolished as it was unsatisfactorily defined.

In Rose v DPP 2006 EWHC 852 a homeless man engaged in ‘an intimate act’ with his girlfriend in the foyer of a bank. No one witnessed the event until the bank manager viewed the CCTV footage the following day. Was the bank manager a witness? Was the offence made out? The Magistrates’ Court held that the offence was made out as a bystander could have witnessed the act if he/she had walked passed. The High Court held that that was insufficient; a notional bystander was not enough. The offence had to be witnessed, and that there had to be others actually present who could see the act. 

In R v Hamilton 2007 EWCA Crim 2026 [an outraging public decency case where a barrister had used a video camera angled to record up women’s skirts) the court considered the following (courtesy of the New Law Journal):

In the judgment of the Court of Appeal, … 19th century cases established that for the offence to have been committed, it was incumbent on the prosecution to prove: 

– that the relevant act was of such a lewd character to outrage public decency; and

  • that the act took place in public and must have been capable of being seen by at least two people who were present, even if they had not actually seen it (known as the ‘two person rule’)

In the judgment of the Court of Appeal, “the purpose of the two person rule was to provide a basic requirement that had to be satisfied before it could be said that the offence was of a sufficiently public nature for it to be an offence”. Accordingly, since the court was “not applying a statutory provision, but a rule of law derived from legal principles and judicial precedents”, there was “no reason to confine the requirement more restrictively and require actual sight or sound of the nature of the act”.

In short, a person may be convicted of the offence of outraging public decency even where the relevant obscene or lewd act has not actually been witnessed; it is enough that there were people present and the act was capable of being seen.

Conclusion?

So the key question is, was the ‘indecent act’ capable of being seen? We know from the police press statement that the station was busy and there were people around.

So might they be guilty? Well, perhaps, if someone was to call the lift and the doors opened. It may be that these two are in for a visit from the rozzers and an embarrassing court appearance. 

If you have any other suggestions as to offences which the pair may have committed, do get in touch. Otherwise, watch this space for an update as and when the police catch up with these two…

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Lyndon is the General Editor of Current Sentencing Practice and the Criminal Appeal Reports (Sentencing)

14 COMMENTS

  1. It does sound as if the offence in question is likely to be that of outraging public decency. Moreover, to be able to assert as the BTP have done that a sex act had been performed, one assumes that this was captured on CCTV in the lift, maybe on later viewing.

    It might be interesting in this context to compare and contrast with the case of the case, who not only performed a sex act on a male sitting by a war memorial but was also observed on CCTV to have peed on the memorial itself, this being the action that caused greatest outrage in popular opinion at least.

    But her acts too were only witnessed by the CCTV operator later, and no member of the public was present, so far as I recall, to be outraged by her conduct.

    A final thought. In most such cases, the press and media seem to focus on the woman performing the sex act in question (‘though there was also a case of two men on top of a Brighton bus shelter which received some limited publicity). There is only very rarely any mention of the man on whom the said act was performed (one would assume willingly if it progressed very far). Is this an example of the sexism on the part of the press or something else? In other words, is there any difference between the way in which the perpetrators are treated in law? One would hope not, but the much heavier focus on the women in such cases suggests that they at the very least bear a greater brunt of public opprobrium than the men involved.

  2. Why are the BTP wasting their time and our money even pursuing this? It is highly questionable whether any law was broken, and no one and nothing seems to have been harmed; so where is the public interest in doing anything about it (disregarding the Press’s salacious interest in anything involving sex.)
    this is just institutional prudery treating its own idea of morality as if it were law.

  3. Oops! “the case of the case”… That was meant to read “the case of the woman” (I had originally written ‘lady’, but decided to change wording, but couldn’t see – because the black control bar came down across the middle of my iPad screen and covered the section in question). Her name was Wendy Lewis, for those who might want to follow it up. I couldn’t find the man’s name anywhere.

  4. Frankly, I think one should take every opportunity.

    It’s ridiculous. As the first reply stated, how can there be public outrage when no member of the public was a witness?

    Leave them alone for pity’s sake, they had a bit of how’s your father and now the poor couple are going to get into trouble for doing what comes naturally to the human race?

  5. As a former BTP officer, I would assume this is being investigated as a breach of byelaw 6: unacceptable behaviour. Q: is sex in a lift at a busy railway station unacceptable? A: probably.

    As for whether public money is being wasted on this – at the moment, it’s BTP’s money, which mainly comes from the train operating companies. If the TOCs think sex in lifts is important, BTP as a private police force will investigate it. Whether the CPS think its in the public interest to continue with any consequential prosecution (and thus spend public money through the use of the judicial system) is another matter. My guess is ‘yes’, depending on the strength of the evidence / whether there is a realistic likelihood of conviction.

    • I said “their time and our money”, not public mon ey. Who owns the train operating companies? Shareholders. Wo subsidises them? Taxpayers. They have a responsibility to spend their money on providing a good transport system, not pursuing some Victorian agenda of prudery. No one was hurt, no one eve saw it (except possinbly on CCTV, and they are paid to be robust)..

  6. Waiting for delayed trains can be quite, read very, boring is it possible they could offer in mitigation that “we were just killing time”. And to who ever made the point about the female being subject to greater opprobrium (great word by the way gonna google it) than the man, what’s new, it’s how the world turns.

    • Sisterhood: the reason the woman gets more attention is that the world rightly – on experience – expects women to show more common sense and self-restraint than men. Rightly because they generally do. So when they don’t it’s news. If you’ll forgive an adage from less enlightened days: dog bites man is not news but man bites dog is.

    • Apparently not – the British Transport Police (and at least one ex-BTB writer) got there first (if you mean sex in a lift is wrong), but you can join the queue. Your comment however does not help the debate without some explanation of what you consider wrong, and why. You say ‘clearly’; it may be clear in you mind, but unless you explain that’s the only place it will be clear.

      • Oh dear, Duncan. Got out of bed on the wrong side today, did we? This was *clearly* a joke (not a very good one, but a joke nevertheless). Lifts go from one level to another… Geddit?!

        • mea culpa. I didn’t realise it was a joke, I thought he was being Frank.
          I must pay better attention in class in future.

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