McCABE v. DONNELLY¹

Criminal Law – Indecent behavior – Public place – Respondent in a private place – Respondent’s behavior directed towards a person in a public place – whether offence committed – Criminal Justice (miscellaneous Provisions) Act (Northern Ireland) 1968 (c.28), s.9(1).

Case stated – Service – Time – whether service on respondent’s solicitor sufficient – Magistrates’ Courts (Northern Ireland) Order 1981, (S.1. No. 1675, N.I. 26), Art. 146(9).

    The respondent was alleged to have been guilty of indecent behavior at Clonavon Terrace, Ballymena on 11 June 1981. The behavior complained of was allegedly committed by the respondent in the front ground floor room of his home and seen by a young woman who was in the street outside her own homes. The respondent was prosecuted for indecent behavior contrary to section 9(1) of the Criminal Justice (miscellaneous Provisions) Act (Northern Ireland) 1968 and upon the hearing of the complaint the Resident Magistrate was asked to adjudicate upon a preliminary point based on the facts alleged by the appellant, namely that the behavior complained of did not satisfy the requirements of the section as it occurred on private premises. The Resident Magistrate acceded to this submission and dismissed the complaint. The complainant appealed by way of case stated to the Court of Appeal.

    When the complainant came to serve a copy of the case stated upon the respondent as required by article 146(9) of the Magistrates’ Courts (Northern Ireland) Order 1981 within 14 days of the despatch of the case stated to the applicant by the Clerk of Petty Sessions it was ascertained that the respondent, a serving solider, had been posted to camp in England and was no longer in Northern Ireland. Service of the copy of the case stated was effected upon the solicitors who acted on behalf of the respondent at the Magistrates Court within the time provided for service and it was agreed in the Court of Appeal that the solicitors had received and approved a copy of the draft case stated on behalf of the respondent before it was signed by the Resident Magistrate.

    Held (i) that as the respondent’s solicitors were concerned with the preparation of the case stated this was sufficient prima facie evidence of continuing authority on their part to accept service and the court had jurisdictio0n to entertain the appeal notwithstanding that the copy of the case stated had not been served on the respondent personally within the time provided.

    (ii) that in the circumstances the indecent behavior alleged occurred “in a street or other public place within the meaning of section 9(1) of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 as an offence of indecent behavior was in a street or public place, there being two parties necessary to such as offence, the one who behaves indecently and the person who witnesses the behavior or to whom it is directed and if the latter is in a street or public place the offence is established.

¹In the Court of Appeal before Jones L.J. and MacDermott J.: September 15, 1982.

  The following cases are referred to in the judgment.

Massereene v. Bellew (1889) 24 L.R.(I.) 420.
Smith v. Hughes [1962] 2 All E.R. 859.
R. v. Edwards and Others 67 Cr. App. R. 228.
Ward v. Holman [1964] 2 Q.B. 850.
Wilson v. Skeoch (1949) 65 T.L.R. 418.

  The following additional cases were cited in argument.

Dolan v. O’Hara [1975] N.I. 125.
Commissioners of Inland Revenue v. Reside [1978] 4 N.I.J.B. Part 1.
R v. Keir (1919) 58 D.L.R. 231.
R v. Thallman 9 Coxes Criminal Cases 388.
Russell v. Thompson [1953] N.I. 51.
Walshe v. Taggart [1951] N.I. 1.
Ford v Falcone [1971] 2 All E.R. 1138.

  CASE STATED. The facts appear sufficiently in the judgment of Jones LJ.

  A. R. Hart for the Appellant.

  John McCrudden for the Respondent.

    Jones L.J. On the preliminary point which was mentioned to us by Mr Hart we think that the case can safely be decided on the basis stated in O’Connor’s Irish Justice of the Peace Volume 1 at page 350 and Massereene v. Bellow (1899) 24 L.R.I. 420. The basis of that decision is that the respondent’s solicitor took part in the drafting of this case and therefore it can be seen that there was a sort of retrospective authority on his part to act in the case and in accordance with common sense, which is not in itself the test but is a help, we think that service was in order. We appreciate the attitude taken by Mr McCrudden and his instructing solicitor upon the question of service and it makes our task easier.

    That brings us then to the real point in the case. The appellant appeals by way of case stated against a ruling of the learned Resident Magistrate sitting at Ballymena on 28 January 1982. The said ruling was given in a case wherein the respondent was charge with an offence under section 9(1) of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968. The material facts of the case were that on 11 June 1981 the respondent, who then resided at the premises known as 31 Clonavon Terrance, Ballymena, stood near the front ground floor window of his house, naked and held back the curtain with one hand. When in that position he held his penis in his other hand and masturbated while looking directly at a young woman who was on the pavement across the street. The young woman could see the respondent clearly. The houses have no front gardens and the front rooms abut directly on to the pavement. Thereafter the curtain was pulled closed. It was then pulled back and the same behaviour was repeated. The point on which the learned Resident Magistrate was asked to rule was that while section 9(1) of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) required that the indecent behaviour complained of must be in “any street, road, highway or other public place, or in any place to which the public has access” the behaviour complained of in this case did not satisfy that requirement as it occurred on private premises (i.e.) the respondent’s own home. The learned Resident Magistrate thereupon having heard argument by Mr. Gregg who appeared for the appellant, and having considered section 9(1) of the Criminal Justice (Miscellaneous Provisions) Act and certain passages of Smith & Hogan’s Criminal Law (3rd Edition), ruled in favour of the respondent and dismissed the complaint. And he now asks the question “Was I correct in law in holding as I did?”

    In our view this case is ruled by authority of long standing which, though not binding on us, is nevertheless of so great persuasive force as to be compelling. In Smith and anor. V. Hughes and ors. [1960] 2 All E.R. 859 it was held that a common prostitute who solicits in a street from the balcony of a house or from behind closed or open ground floor or first floor windows of a house adjoining the street commits the offence of soliciting in a street or public place contrary to section 1(1) of the Street Offences Act 1959. On the other hand in R. v. Edwards and Eric Roberts it was held that as the person using the insulting words or behaviour and the person against whom they were directed were in a private place, a private garden, and as such not a public place under section 9(1) of the Public Order Act 1936 the appellants could not be guilty of the offences charged under para. 5(1) of the Act of 1936. And in that case Bridge L.J., as he then was, who delivered the judgment of the court, said:

“In our judgment, looking at the various authorities to which our attention has been called, the true view of the construction of section 5 in this regard is this: that there are in a sense two parties necessary to the commission of an offence under section 5. There is on the one hand the person who uses the threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned. There is on the other hand the party whom one may call the victim of the offence, the person to whom the threatening, abusive or insulting words or behaviour are directed. As Lord Goddard’s dictum in Wilson v. Skeoch 65 T.L.R. 418 shows the offence may be committed if the person to whom the relevant words or behaviour are directed is in a public place. As Ward v. Holman [1964] 2 Q.B. 850 shows, the offence may be committed if the person to whom the words or behaviour are directed is in a private plaxce but the person using the words and behaviour is in a public place. Where, as here, both the person using the insulting words or behaviour and the person to whom they are directed were in a private place it seems to us that it was impossible for the Crown to show that there had been any offence.”

    In our view that explains the position clearly. Accordingly, though the respondent was in his own premises the woman at whom the conduct was directed was in the street, we take the view that the offence was proved and so we would answer the question put to us “No” and send the case back to the resident magistrate with a direction to proceed as to justice shall appertain.

MACDERMOTT J. I concur.

Order accordingly

    Solicitor for the Appellant: Director of Public Prosecutions.

    Solicitors for the Respondent: James L. Russell and Sons

W.D.T.