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23 May 2010

Robert Brown of Corker Binning comments on Sex in the City

Commenting in The Metro, Robert Brown , partner, Corker Binning addresses the likelihood of cases of public sex activity being prosecuted.

Sex in parks: Why keep it under wraps?

Public displays of affection are becoming commonplace in our parks. Criminal offence or just a bit of harmless fun, here is all you need to know about being indecent in the open air.

Your local park is about to become a dangerous place to be. You’ll sit down, unpack your lunch box – and then notice the couple next to you have already moved on to a tongue sandwich. From Kelvingrove to Clifton Down, Heaton to Hyde Park, at the first whiff of sunshine Britain’s green spaces start to look like the sloppy end of a teenage disco.

Nowhere is safe from this amorous army: last summer the Queen’s front lawn played host to a couple who were overcome by passion after an all-day drinking session in the bars of Windsor. Although the pair seemed unconcerned by the crowd of tourists that had gathered to watch or the encouraging shouts of some of Her Majesty’s sentries from their barrack room above, they stopped when Royal Protection Officers arrived at the scene. After being taken to police cells and cautioned for outraging public decency, they were released the next morning.

The crime has its origins in the days when courts were expected to protect our morality as well as our rights and persons. Since Sir Charles Sedley was first convicted of the charge in 1663 for urinating over the heads of a crowd in Covent Garden while drunk, it has been used to cover all manner of misdemeanours, from a teacher caught ‘behaving in an indecent manner with a desk’ in front of his pupils to a couple who disturbed other passengers with some transatlantic passion.

For guilt to be established, the police must prove the offence was of a ‘lewd, obscene or disgusting nature’ and that it occurred in a public place where two or more people might have seen it – regardless of whether they actually did. In practical terms, this means you are free to have sex wherever you want as long as you have a reasonable expectation of privacy. If it can be proved that at least two other people could potentially have witnessed the act, then you’re at risk of having ‘outraged’ their ‘decency’.

A spokesman for the Ministry of Justice confirms there is no law against having consensual sex outdoors in isolated places but is unable to suggest where exactly one might have a reasonable expectation of privacy, adding: ‘It’s really for the Crown Prosecution Service to decide whether to prosecute, depending on the circumstances.’

For many couples, however, sex in public isn’t about enjoying the warmth of the sun on their bum or the beauty of their surroundings – the thrill lies in the risk. Simone, 27, from Nottingham, describes how she and her ex would regularly visit local parks specifically for a little ‘romance’. She says: ‘The idea of being caught in the act was really exciting but then one day I looked up and there was a massive dog just standing there, watching us. It started barking so we ran.’

There was a suggestion a couple of years ago that police officers should ‘turn a blind eye’ to public sexual activity but the Metropolitan Police insists the law is the law.

Robert Brown , a leading criminal litigator and partner at Corker Binning, says cases involving individual couples are rarely prosecuted, adding: ‘The police tend to take a relatively tolerant view of things if it’s just two people having a bit of fun.’ However, Brown says they’re more likely to take a serious view if there are children around. Under the Sexual Offences Act 2003, engaging in sexual activity in the presence of a minor is a much graver crime.

Suddenly getting frisky alfresco, particularly during daylight hours, doesn’t seem like such a good idea. Even if children haven’t spotted you, the mere fact they could have done is enough to get you into serious trouble. And with the possibility of a fine or even a prison sentence, you might prefer to wait until you get home.

Of course, for some, mere humiliation is enough to put them off for life. Nick from Reading in Berkshire was only a teenager when he and a girlfriend decided to experience the thrill of the outdoors. ‘We walked around for a bit and then saw what looked like a lovely bit of grass,’ he says. ‘It seemed dark and no one could see us if they walked past so we got down to business. Just as I was about to seal the deal I started to hear cheering and shouts.

‘We just kind of smiled at each other and tried to work out where the voices had come from. I rolled over to notice that the restaurant on the other side of the river had a full balcony. Needless to say, we covered up and scarpered sharpish.’

Since then Nick has preferred to keep things strictly behind closed doors.