No: 200004422 X1/200004423 X1
Neutral Citation Number: [2001] EWCA Crim 2455
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Tuesday, 30th October 2001
B E F O R E :

LORD JUSTICE LAWS

SIR BRIAN SMEDLEY

and

HIS HONOUR JUDGE RANT QC

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R E G I N A

‑ v ‑

PAUL MCMANUS

and

ANDREW JOHN CROSS

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
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MR C NELSON appeared on behalf of the Appellants
MR C STOPA appeared on behalf of the Crown
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JUDGMENT
Tuesday, 30th October 2001
1.	LORD JUSTICE LAWS: On 28th June 2000 these appellants were convicted before Mr Recorder Hope and a jury at the Newport Crown Court on the Isle of Wight of an offence of keeping a disorderly house. The offence had been charged in count 5 of the indictment. The appellants were acquitted on counts 1 to 4 which charged like offences. On 25th July 2000 each was find a £1000 and order to pay £150 towards the cost of the prosecution. They now appeal against their convictions by leave of the single judge.
2.	The principal ground put forward is that the prosecutions constitute a violation of Article 10 of the European Convention on Human Rights, a matter which would be engaged for this court's consideration of course by the Human Rights Act 1998 if its resolution proved necessary in order to decide the appeal. We shall return to that issue shortly.
3.	First it is convenient to look at the facts. The general nature of the case was as follows. Both appellants were concerned in the management of a basement bar called Churchills, in Ryde, Isle of Wight. The five counts in the indictment related to five separate occasions in 1999 where there was live entertainment at the bar which included performances by strippers.
4.	On each occasion, as we understand it, members of the public who desired to witness these events were required to pay an entrance fee of some £1.50. On each occasion the performances were viewed by police officers, most of whom were special constables. They were posing as members of the public. It was the Crown's case that this striptease degenerated in the sense that members of the audience were invited to lick cream from the bodies of naked women taking part in the performance, and on some occasions a man, a member of the audience, was beaten in a cage. The jury had to decide whether the common law offence of keeping a disorderly house was made out.
5.	It is useful just to note what are the requirements of that offence as it has been developed in the jurisprudence now over a very considerable period of time. It has to be proved by the Crown that the performance or activity in question (a) constitutes an outrage of public decency, or (b) has a tendency to corrupt and deprave, or (c) is otherwise calculated to injure the public interest so as to call for condemnation and punishment.
6.	In the present case the defence asserted before the jury that all of these events were nothing more than an exuberant piece of entertainment and did not constitute a disorderly house at all.
7.	Neither appellant gave evidence. The Recorder, after hearing argument at the end of the Crown's case, decided that he should direct the jury that they were entitled to draw adverse inferences against the appellants by reason of the fact that they had not given evidence. That is a matter to which we shall return. Since one of the points taken on the appellants' behalf asserts an inconsistency between the jury's acquittal on counts 1 to 4 and the convictions on count 5 it is necessary for us to describe the facts of the five incidents in a little detail.
8.	Count 1: this took place on 26th March 1999. Two officers, Palmer and Arkless, went to the premises. They were told at the door that there was an entry fee of £1.50 because there was a striptease show inside. Both male and female members of the bar staff were topless. A dancer squirted cream from a can on to her body. Male customers were invited to lick it off her breasts as well as from other parts of her body. She simulated sexual intercourse by sitting astride one man in the audience who, however, remained clothed.
9.	Later on, there were two women, one of whom rubbed lotion into the other. Both squirted cream on to their breasts. Men were invited to lick it off. The younger of the two squirted cream upon herself just above her pubic area, which was shaved, and also on her buttocks. Again, the cream was licked off by men in the audience. The other woman bent over and exposed her genitals. On this occasion there was no actual sexual intercourse or oral sex. Officer Palmer said he was not upset by what he had seen and nor was the audience.
10.	Count 2 concerned a show which took place on 3rd April 2000. Arkless again went to the premises with another officer, on this occasion Jacobs. The beginning of the performance involved participants massaging baby oil, but the audience were not physically or directly involved with that. Later, however, one of the strippers squirted cream on to her breasts and pubic area and, as before, it was licked off by members of the audience. She also bent over in front of the audience displaying her genitals. She rubbed her buttocks and also between her legs. Again, Officer Arkless gave evidence that he had not been upset by seeing this performance.
11.	Count 3: 10th April 1999, the two officers on this occasion were Harris and Knight. The performances included the squirting of cream on the breasts of women taking part and between their buttocks. Members of the audience licked it off. The participants in the show asked for donations from the audience and there was an indication that there was a further show to take place involving a cage in an alcove on the premises.
12.	One of the men in the audience was put into the cage where he was tied up. His underclothes were pulled down to below his buttocks. One female participant in the show stroked her vagina revealing her clitoris. It turned out that the man who was tied up was 29 years old and so the participant told the audience he would be smacked 29 times. So he was. The 29th smack was followed by a big smack said to be for luck. The man cried out. His buttocks looked red. He was rubbed with baby lotion. The audience was told that whoever made the biggest donation could go into the cage. There was evidence that the whole thing was good humoured. There was no trouble of any kind. Indeed, it was described as “tame stuff”.
13.	The man in the cage seemingly objected to having his trousers lowered. One of the women pulled them up to just below his buttocks. The stripper had a black strap. She seemed to hit the man hard until after the fourth blow, but he did not struggle a great deal. It seemed that he was being “egged on” by friends in the audience. 
14.	Count 4: 17th April 1999. Four officers went to the premises. There came a stage when the audience gathered round the cage, to which we have already referred, the music however did not start. The crowd began to shout at the dancer. She got upset and left, as did a lot of people in the audience. At length there were only about 20 people present when the same woman dancer took all her clothes off, save her boots. She danced in the cage. She rubbed her breasts and nipples against it. At about 11.45 at night more people came into the bar. A chair was put into the cage. A man was led into it. The girl dancer stripped to her knickers. The man was required to take his shirt off. The girl stood him up and tied his hands so that he was facing the wall. She took down his trousers and pants to his knees. She took a riding crop and whipped his buttocks about ten times. The crowd was shouting to give him more but she said that he had had enough.
15.	Lastly, count 5. As we have said this was the only count upon which there were convictions. PC Spencer who had been one of the officers attending at the occasion of count 4 went again to the premises with two other officers. This was on 7th May 1999. All the customers were male. They put money in a glass which was handed round to pay for what was being called the “full monty”. There was a woman dancer who moved about in a provocative fashion and took all her clothes off. She squirted lotion on to her breasts. She bent over pointing her bottom towards the crowd. She exposed her anus and the area of her vagina. She was collecting up the money and whilst she was doing so was asked by members of the audience what they would get for going on stage with her. She answered that they should wait and see, it was a secret.
16.	She danced again in the same way she had before and this time called for a volunteer to go up on the stage. A man did so. She stood over one of his legs and squirted cream onto her nipples. He proceeded to lick it off. Then she squirted it down her back and to the top of her buttocks. The man was invited to lick it and did so right down to her buttocks. Then he was made to kneel in front of a chair. She squirted more cream. This time it was from her ankle along the inside of her thigh and across her stomach and pubic bone area. She invited the man to lick it off. When he got to her pubic area he licked rather lower than the cream. It was said that he licked her at the top of her vagina. Some of his answers in cross‑examination are a little unclear.
17.	The woman asked the crowd to applaud him. Then a man, the same man as we understand it, was led to the cage were he was strapped to the wall. The woman exposed his buttocks. This young man was 19 years of age apparently. The woman struck him with a strap fashioned somewhat like a dog collar. She was being encouraged by the crowd. The young man did not flinch.
18.	Later on the same woman had another member of the audience rub lotion into her breasts. There was a similar performance with cream on her legs and so forth. On this occasion she was not licked in the vaginal area. PC Spencer was saying he was not shocked but somewhat surprised, what had happened had been on the brink of oral sex.
19.	We may break off there, it is not necessary to go into the details of what was said in interview and, as we have indicated, neither appellant gave evidence to the jury.
20.	It is worth noticing that the appellants were also charged with offences under the Local Government Miscellaneous Provisions Act 1982. Those were offences of conducting live entertainment without a justice's licence. These charges were apparently committed to the Crown Court under section 41 of the Criminal Justice Act 1991 but we have not been given any information as to what happened to them. 
21.	We have already indicated that the principal ground of appeal concerns the European Convention on Human Rights. It is said that these prosecutions constituted a violation of the appellants' rights of free expression under Article 10. It is said that the jurisprudence of the European Court of Human Rights shows that freedom of expression under the Convention may extend to activities of the kind concerned in this case. It is asserted that the violation in question here cannot be justified under Article 10(2) as being prescribed by law or necessary in a democratic society.
22.	The skeleton argument put in on behalf of the appellants shows that it is submitted that each of the defining features of the offence of keeping a disorderly house, which we have already described, is so vague as to offend against the principle of legal certainty. Accordingly, the offence cannot be said to be prescribed by law, as would be required under paragraph (2) of Article 10 if the inference with the right to free expression were to be justified.
23.	Moreover, given that no one seems to have witnessed these events other than a willing audience who had paid for it and that as it happens another course of action, that is prosecution for want of a justice's licence, was available, the prosecution, so it is argued, cannot be said to be necessary in a democratic society. Those are matters of substance and importance and in a proper case would plainly require careful consideration by this court so far as they were raised on an appeal here.
24.	In the present case, however, there are two other points put forward on behalf of the appellants which, as it seems to us, determine the appeal in the appellants' favour. The first concerns the direction given by the Recorder to the jury to the effect that they might draw adverse inferences from the appellants' failure or refusal to give evidence. The direction was of course based on the provisions contained in section 35(2) and (3) of the Criminal Justice and Public Order Act 1994. This is what the Recorder said at 11H of the transcript:
“In the first place, when considering the evidence as it is now, you may bear in mind that there is no evidence from the defendants themselves which in any way undermines or contradicts or explains the evidence put forward by the prosecution. You do know, of course, that the defendants did answer questions in interview. They had some lengthy interviews and you have copies of those. Indeed, through their counsel, they now seek to rely on those answers which of course are now evidence in this case ‑‑ evidence of what they said then when they were questioned and interviewed. It is a matter entirely for you, members of the jury, to decide what weight you should give to them, but you are entitled to bear in mind that those answers were not given here before you, they were not given on oath in the witness box, and the prosecution had no opportunity to test them in cross‑examination. In the second place, members of the jury, if you think in all the circumstances it is right to do so, you are entitled, when deciding whether a defendant is guilty of the offences charged, to draw such inferences from his failure to give evidence as you think proper. In simple terms this means that you may hold his failure against him.” 
25.	Then at 13C:
“What inference can you properly draw from a defendant's decision not to give evidence before you, members of the jury? If, and only if ‑‑ and I stress this ‑‑ you conclude that there is a case for him to meet, you may think that if he had an answer to it he would have gone into the witness box to tell you what it is.” 
26.	On the particular facts here this direction seems to us, with respect to the learned Recorder, to be entirely inappropriate. The facts of the case were not, as we understand it, effectively disputed at all. Certainly there was no dispute as to the actual events which took place on the five occasions. Although in ruling that he would give a section 35 direction the Recorder had earlier referred to matters concerning the running and keeping of the club, there were really no issues of any substance calling for any distinct factual explanation or answer from the appellants. The learned Recorder's observation to the jury that if they concluded that there was a case for a defendant to meet, then they might think that if he had an answer to it he would have gone into the witness box, really carries no sensible meaning on the facts here. There is nothing that the defendants could have said that was relevant and admissible to throw light on the only issue for the jury, which is whether the events which they had heard described fell into one or other legal category of this offence of keeping a disorderly house.
27.	In the result then we take the view that the judge's direction can only have had a prejudicial and unfair effect, as perhaps leaving the jury to suppose that without evidence from the appellants there was some presumptive case of guilt which had gone unanswered. In those circumstances, in our judgment, the direction given by the Recorder renders the convictions on count 5 unsafe.
28.	That, of course, would determine the appeal but it is right that we should deal with the other point which has been argued before us. That consists in the appellants' submission that there is an unresolved inconsistency between the acquittals on counts 1 to 4 and the conviction on count 5. The Recorder gave the jury what may perhaps be described as a standard direction, to the effect that they must consider each count separately.
29.	Now we have described the details of all five counts. To take the matter shortly, we are simply unable to see how a reasonable jury can have concluded that this common law offence was made out on the facts of count 5 but not on any of the other counts. The nature and quality of what was done was effectively the same in all five counts. Much of the detail was the same. Count 3 shared with count 5 the feature of a man being strapped in the cage and beaten. In counts 1 and 2 cream was licked from a woman's pubic area, and count 5 a man seems to have licked at the top of the woman's vagina. Perhaps that detail in count 5 looked to one or other of the officers who was at the scene as if it was something closer to an act of oral sex. But, in reality, any distinction between these counts is artificial and not something upon which a reasonable jury could have based a principled distinction between guilt and innocence.
30.	In those circumstances, this argument too seems to us to be good. For the two reasons which we have explained we consider that these convictions are unsafe. They will accordingly be quashed.
31.	We have not of course yet heard any submission as to whether there should be a fresh trial. Our firm provisional view is that there should not. If that remains our view after hearing anything that Mr Stopa wants to say then, as it seems to us, it would not be our duty to go into the difficult and important concerning the European Convention.
MR STOPA: My Lord, to save condign punishment by a jury once is quite enough for me.
LORD JUSTICE LAWS: Thank you, Mr Stopa. Are there any other matters? Is this a case where under the new statutory regime we have to consider whether to make a defendant's costs order? Well, if it is, we will not.