Vigon v Director of Public Prosecutions
(1997) The Times December 9QBD
The Facts
Vigon operated a market stall where he sold women's swimwear. He placed a partially concealed video camera in the changing area of the stall so that when customers tried on garments they would be filmed.
The Law
The Court said that it had been said for Vigon that filming customers in a state of undress was not behaviour within the ambit of section 5 of the 1986 Act. It was said that all he had done was to instal and switch on the camera and the filming was not his behaviour.
The reported cases such as Chappell v DPP (1988) 89 Cr. App. R 82 showed that behaviour which fell within section 5 was usually overt behaviour which had a direct effect on persons within sight of the offender.
Held that delivery of a letter to a person within his or her own home, where he or she reads it and is alarmed or distressed by its contents, cannot be an offence contrary to s.5., but see the Malicious communications Act 1988,s.1(1).
However, it did not seem to the court that the words of section 5 were meant to be limited to rowdy behaviour.
Counsel for Vigon had accepted that if Vigon had peeped between the doors of the changing room it would have been open to the justices to find that insulting behaviour.
The only difference was that Vigon had chosen to peep by video camera. It was open to the justices to find that the actus in setting up the camera, switching it on and letting it run amounted to insulting behaviour.
The Decision
Partially concealing a camera so as to film customers trying on swimwear was capable of being disorderly and insulting behaviour likely to cause harassment, alarm or distress contrary to section 5 of the Public Order Act 1986.
The QBD Court so held when dismissing an appeal by Vigon against his conviction by Justices of disorderly and insulting behaviour within sight of a person likely to be caused harassment, alarm or distress contrary to section 5 of the 1986 Act.
Comment
What is not apparent from the Report.
The film may have been for personal use or an attempt to set up film displays.
Although different, in that live models were used, a case involving displays was Willowcell Ltd v Westminster City Council (1995) The Times, 14 April Court of Appeal, the facts were that inside premises were booths and when customers put money in a coin meter they could see through a window one or more young women who were normally naked above the waist and who might have been naked below their waists, gyrating while caressing themselves with their hands and caressing in particular their breasts and vaginas.
While those movements were made loud music of a modern and popular kind was played. As more coins were placed in the meter the display became more explicitly sexual.
The unanswered question in Vigon is what would the films have been used for?
The Decision in Willowcell was that Lewd sexual displays by young naked, or semi-naked, women that included gyrating to loud music while caressing their breasts and vaginas with their hands were not "music and dancing or a like public entertainment".
As for what we elect to watch ourselves, Per, The Times, 12 November 1992, Lord Rees-Mogg is quoted saying that, "viewers have a well balanced and moderately liberal attitude", towards sex and sexuality on TV. The discussion was centred on moving the 9 pm. watershed to 10 pm.
That does not seem to stop the TV companies from confronting us all with an explicit sex scene at one minute past 9 pm.
Not a Display
In Chappell v DPP (1988) 89 Cr. App. R 82 held that magistrates were correct to decide that the posting of an envelope, with writing containing abusive or insulting words concealed inside it, through a letter box could not amount to a ‘display’. This approach might apply to envelopes containing threatening,abusive or insulting material even in public.
Person Likely to Be Caused Harassment, Alarm or Distress
Harassment, alarm and distress are alternatives . 'Harassment' does not demand any element of apprehension about personal safety Chambers v DPP [1995] Crim LR 896.
In Lodge v DPP (1988) The Times, 26 October 1988, the Divisional Court decided that whether a person was likely to be caused harassment,alarm or distress is a matter of fact to be determined by the magistrates. The court indicated that it is sufficient if the other person in question, in that case a police officer,feels alarm (or harassment or distress) for someone else, for example a child.
Police officer as victim.
In DPP v Orum [1989] 1 WLR 88, the Divisional Court decided that, where the only people present were the defendant, his girlfriend with whom he was having an argument and two police officers, a police officer can be a person likely to be caused harassment, alarm or distress. However, if an officer is the only other person present and he is not likely to be caused harassment, alarm or distress, no offence is committed, because the element of causation is lacking. However, the Court of Appeal in Ball (1989) 90 Cr. App. R 378, without reference to Orum, was of the opinion that in such circumstances a police officer could arrest the person because he could have reasonable cause to suspect that an offence had been committed, since the conduct in s.5 does not have to be directed towards another person.
Place of Commission of Offence
Public Order Act 1986, s.5
(2)An offence under this section may be committed in a public or a private place,except that no offence is committed where the words or behaviour are used, or the writing,sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.
The Divisional Court in Chappell v DPP, supra, held that the delivery of a letter to a person within his or her own home, where he or she reads it and is alarmed or distressed by its contents, cannot be an offence under s.5. However, such conduct would constitute an offence contrary to the Malicious Communications Act 1988, s.1(1).
Mens Rea
Public Order Act 1986, s.6
(4)A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.
Whether the defendant had the intention or awareness is to be tested subjectively in the light of the whole evidence, the burden of proof beyond a reasonable doubt lying upon the prosecution DPP v Clarke (1991) 94 Cr. App. R 359. The defendant must intend the behaviour to be disorderly or be aware that it might be disorderly Chambers v DPP [1995] Crim LR 896.
Secret motive?
Albeit there is no evidence of children being photographed; nevertheless some of the law can be considered here.
Such a question only arises in prosecutions of those who assault or take photographs of children. It is not of relevance in cases of persons who distributed indecent photographs.
This secret motive question was discussed in R v Court [1989] AC 28, 1988, The Times, May 3, where the House of Lords decided that in a case of assault which was ambiguous with regard to whether or not it was an indecent assault, evidence of secret motive, (first hearsay statement to a police officer was relevant and admissible in determining whether the assault was indecent or not).
The particulars of the case were as follows. Court, had asked a 12-year-old girl when she visited the shop, if she would let him spank her. She said "No". Thereupon he seized her, pulled her over his knee and spanked her 12 times on her buttocks.
He pleaded guilty to the assault, but denied that it was indecent. He was convicted of indecent assault, by the Crown Court. He appealed first to the Court of Appeal and then to the House of Lords on the grounds that his answers to the police i.e. "buttock fetish" should have been excluded as being a secret uncommunicated motive which had not been communicated to the victim of the assault and could not therefore make indecent an assault which of itself was not overtly indecent.
The Lords held that on a charge of indecent assault where the circumstances of the alleged offence could be given an innocent as well as an indecent interpretation, evidence of the accused's evidence of assaulting the victim, whether or not it was revealed as an innocent motive, was admissible both to support or negative that the assault was an indecent one and was so intended by the accused.
Secret motive in photograph cases
In considering photograph cases, secret motive is not an essential ingredient. In R v Graham-Kerr, Court of Appeal, 1988 1 WLR 1098,The Times, July 12 Graham-Kerr was charged with taking indecent photographs of a seven year old boy contrary to 5 1(1)(a) of the Protection of Children Act 1978. A boy of seven, was swimming in the baths with his parents. The general public were not admitted to the baths that evening as the family were nudists (naturists). G-K came up and said he would give the boy some swimming lessons. Some photographs were taken by the official photographer with the permission of the parents. G-K with his own camera took two pictures of the boy in the changing rooms without the parents' knowledge or permission.
Rob Jerrard