4. Sexual activity in public
40. Clause 74 no longer appears in the Bill, having
been removed by a Government amendment after heavy criticism in
the House of Lords.[54]
It was introduced, on a recommendation in Setting the Boundaries,
to establish a new offence of engaging in sexual activity
in a public place.[55]
Although it was thought widely to be too broad in scope (by extending
its reach into people's private gardens and remote locations in
the countryside), much of the criticism focussed on its perceived
failure to cover sexual activity in public toilets. The Government's
solution was to withdraw the clause, but this has not alleviated
concerns that the Bill may legalise sex in public toilets. Consequently,
on 9 June, the Lords passed an amendment to insert a new clause
(Clause 67), which will prohibit—in express terms—"sexual
activity in a public lavatory".[56]
41. The Government accepts that "people do not
want public toilets used in a way that upsets, outrages, offends
and distresses people of a reasonable disposition".[57]
The question is simply how to achieve the common objective of
preventing such behaviour. Many believe that the Bill will create
a loophole in the law because it will repeal offences (such as
buggery and gross indecency) which apply very specifically to
consensual acts committed in public toilets,[58]
without any adequate replacement. Clause 74 required the person
engaging in sexual activity to know (or be reckless as to whether)
someone in a public place would "see any part of him
or another participant". On this drafting, it was
argued that a person who engaged in sex behind a closed cubicle
door—and was screened from public view—would not commit
the offence.
42. The Government says that the common law offence
of outraging public decency "is capable of dealing with the
problem".[59]
It has also said that section 5 of the Public Order Act 1986 "adds
further protection in that it covers sexual activity within the
sight or hearing of a person likely to be caused harassment, alarm
or distress".[60]
Furthermore, the Government has proposed to make the common law
offence more flexible by allowing it to be tried either as a summary
offence in the Magistrates' Court or on indictment in the Crown
Court. [61]
(At present, it is triable only on indictment).
43. Others are not convinced and much debate has
ensued about the precise scope of these offences. Before the Bill
was amended, Jan Berry (Chair of the Police Federation) told us
that:
"From a police point of view, there are public
toilets which members of the public do not feel able to go to
because of the use to which they are put. I think that is unwarranted.
I think the law, if it goes through in this way, will actually
make that lawful…Our view is that what goes on behind closed
doors between consenting adults of the right age is appropriate,
but that should not be in public toilets…it is not an appropriate
use of public toilets…I think the law needs to make that
very explicit."[62]
44. The Government, however, has opposed new Clause
67 (Sexual activity in a public lavatory), on the basis that it
"specifies that certain activities have to be committed".
During the debate in the Lords, the Minister of State in the Home
Office, Lord Falconer of Thoroton QC, explained that:
"In the law as we see it operating, if something
were to happen behind a cubicle door, for example, it would not
be necessary to identify precisely what act had occurred, it would
be enough, if looking at all the circumstances, people using the
toilet were outraged, offended or distressed by what happened.
As regards…[new Clause 67], specific acts have
to be identified. I fully understand the motive behind the amendment,
but I can assure noble Lords that it is not going to have the
[intended] effect…because of the specific problems of proof."[63]
45. In Setting the Boundaries, the Sexual
Offences Review recommended that a new public order offence be
created to deal specifically with sexual behaviour:
"We thought that the present Public Order Act
1986 provided a useful model for the kind of offence we envisaged.
Offensive behaviour under section 5 of the Public Order Act is
only unlawful when there is a third person present who is (or
is likely to be) distressed by it. Section 5 also gives the police
a special power to warn a potential offender before arresting
him. In most cases this will be a more appropriate and effective
way of dealing with indecency; the aim except for those who are
persistently causing nuisance is to resolve the problem on the
spot. If the warning is ignored then there is the option for prosecution.
We thought that this was a useful model, but that rather than
rely on the existing tests in the Public Order Acts we should
recommend the creation of a new offence. This should not only
apply to open displays of sexual acts in public, but also behaviour
leading up to it."[64]
46. At present, section 5 of the Public Order Act
1986 covers (among other things) "threatening, abusive or
insulting words or behaviour, or disorderly behaviour" which
is likely to cause harassment, alarm or distress. Although it
may be possible—and the Government argue that it is
possible—to apply this to sex in public toilets, we believe
that it should be made more explicit.
47. There is much concern and disagreement as
to whether this Bill will legalise sexual activity in public toilets.
We recommend that sexual activity in public toilets should be
a criminal offence and suggest that this could be dealt with by
an amendment to section 5 of the Public Order Act 1986, which
makes it clear that "insulting" behaviour includes sexual
behaviour. This would dispense with the need to prove specific
sexual acts and also has the advantage of empowering the police
to give a warning before making an arrest. We believe that it
is appropriate for this offence to be dealt with in the Magistrates'
Court, rather than in the Crown Court.
54 HL Deb, 19 May 2003, cols585-588 Back
55
Home Office, Setting the Boundaries, July 2000, Vol I,
p 126, para 8.4.11 Back
56
The amendment was passed by 133 votes to 95. HL Deb, 9 June 2003,
cols 64-80. Back
57
HL Deb, 9 June 2003, col 75, Lord Falconer of Thoroton QC Back
58
See sections 12 and 13 of the Sexual Offences Act 1956 and section
1 of the Sexual Offences Act 1967, which will all be repealed
by the Sexual Offences Bill, cl 132 and Sched 5. Back
59
HL Deb, 9 June 2003, col 75, Lord Falconer of Thoroton QC. The
case of R v Mayling [1963] 2 QB 717, CA has been cited
as an example of how the common law offence has applied to an
act of indecency in a public toilet. However, Mayling appears
to suggest that the offence would not apply if the act
had been committed behind a closed cubicle door because "more
than one person must at least have been able to see the act complained
of". See HL Deb, 9 June 2003, col 66, Baroness Noakes. Back
60
HL Deb, 19 May 2003, col 586, Lord Falconer of Thoroton QC Back
61
An amendment to this effect has been made to the Criminal Justice
Bill (cl 290). Back
62
Qq 68-69 Back
63
HL Deb, 9 June 2003, col 76, Lord Falconer of Thoroton QC Back
64
Home Office, Setting the Boundaries, July 2000, Vol I,
p 126, para 8.4.9 Back
| 
