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Jo C.
Jo C., Barrister
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Experience:  Over 5 years in practice
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I have an enlarged prostate and plan my journeys to allow for

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I have an enlarged prostate and plan my journeys to allow for toilet stops. An unplanned-for urgent need arose on a train and went to the toilet to find it engaged. It remained engaged until I could not hold my water any longer. I considered peeing in my trousers and leaving a pool of water on the floor, returning to my seat and peeing discreetly on the seat or peeing in the plastic bag-lined waste bin. I decided on the latter but two ladies saw me and reported me. I note under Section 5 of the Public Order Act that it is a defence for the accused to prove- . . . (c) that his conduct was reasonable. I can provide a note from my doctor verifying my condition.
Jo C.
Hi.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Are you asking if this is a defence?
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Customer: replied 3 years ago.

I am asking if the following can be used as a defence:


1 That I have a medical condition.


2 That I had planned my pee stops and this urgent need came on suddenly and


3 That I ensured that no-one could see exactly what I was doing since I had my back to them.
Well, it is a potential defence.

I don't think they can be alleging that you exposed yourself because then you would be facing charges of outraging public decency or indecent exposure. The allegation will just be that they saw the urination amounting to S5 public order.

That has advantages and disadvantages. The advantage is that it only carries a fine. The disadvantage is that its very easily committed. They will just be alleging disorderly conduct likely to cause harassment, distress or alarm.

I suppose you could argue that it doesn't cause harassment, distress or alarm. It may cause disgust and annoyance but thats not what the law requires.

Whether or not the court would find this was reasonable is another matter. You are going to need to find really strong medical evidence to the effect that you had no other choices at all before the Court are going to find this is reasonable conduct.

Can I clarify anything for you?

Jo
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Customer: replied 3 years ago.

Does the choice of a plastic bin as opposed to a pool on the floor help my defence?

I think probably the issue will be whether things really were that urgent. A court will not accept that very lightly at all.
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Customer: replied 3 years ago.

FOR JO C


After I had pee'd into the waste bin I was keen to cover up the fact that I had done it and slipped my penis into one side of my trousers, to make myself decent. Continuing the charade that I had not actually pee'd I turned round to face two women with a babe in arms who were sitting near the toilet door, and waited for the toilet to be vacated. A few moments later it was vacated and I stepped inside to simulate using the toilet.


 


At the next station I was told by a British Transport Police officer that the ladies had alleged that I had pee'd in the waste bin and that I had then exposed myself to them. I admitted that I had pee'd in the waste bin but said I had not exposed myself to them since I had been extremely careful to ensure that they could not see what I was doing.


 


Later on, after I had been allowed to go, I thought over the exposure part and thought that it might have been the case that my member had been visible when I turned round, since, in order to not make it obvious I had been peeing, I had only put my member away into my trousers and had not zipped up the fly.


 


Would you review your previous answers and tell me:


 


If convicted:


1 What law/s I would have broken


2 What is the likely sentence.


3 Would I be entered onto the sex offenders register


 


My defence is that I took the best course in handling my need to pee and that I had not intentionally exposed myself.
i don't think the allegation is that you exposed yourself deliberately. If it were there would be other more appropriate charges. I think the allegation is that urinating in this way amounts to a S5 which it does really unless you can prove it was reasonable.

So

1 Unless there is an allegation of exposure or at least that there was a risk that more than 2 people could see, I would charge it as a S5.

2 S5 only carries a fine

3 No.

The only risk though is that if you persist with a defence they may amend the charges to either outraging public decency or indecent exposure. Obviously it depends on their evidence. I suppose that the women say that you didn't intend them to see which is why they can't charge indecent exposure but it seems surprising that outraging public decency isn't available.
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Customer: replied 3 years ago.

As I mentioned before it was alleged that I had exposed myself to them. In your answer you said "Unless there is an allegation of exposure" it is S5. Did you mean "Unless there is an allegation of indecent exposure?"


 


Also regarding "a risk that more than 2 people could see" - there were two ladies plus a babe in arms - does the baby make three?
No, exposure would refer to indecent exposure.

Obviously they must have seen you urinating. I have to say that I would have charged that as outraging public decency so I'm not sure what the thinking behind that was. I suppose one inference that could be drawn is that the reviwing lawyer is just trying to save money and rack up the chances of conviction by charging a S5 which can only be tried at the Magistrates Court by people who are generally more biased in favour of the Crown than proper open jurors.

I think the restriction on the evidence though is probably that these women have said that you did not intentionally exposure your penis to them and probably some bright spark in CPS thinks that means that they cannot bring an outraging public decency charge.

What it does mean is that they cannot charge this as an indecent exposure because they cannot prove you intended anybody to see.
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Customer: replied 3 years ago.

No-one has yet suggested what I will be charged under. The suggestion that it might be S5 at the start of our interaction was based on my own inexpert research and did not come from the police.


 


The police have simply told me of the allegation y the two women, without specifying what law I have broken.
Ok. Their options are then either indecent exposure, outraging public decency or S5.

To bring indecent exposure they have to prove that you intended somebody to see which is almost never the case with urination.

To bring outraging public decency they just have to show that you exposed yourself in circumstances where there was a risk that one or more member of the public might witness it. The reference to two above was a typing error!

Outraging public decency is a very widely defined offence though. Even if there isn't an exposure that risked anybody seeing it, they could argue that the act of public urination amounts to outraging public decency.

There is a leading case upon urination that lead to a conviction but that was urination upon a war memorial and it is possible to argue that it was the act of defiling a war memorial that caused the outrage rather than the mere urination.

Or they could drop down on S5. That would be a good deal if they do.
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Customer: replied 3 years ago.

Two more questions - thanks for your patience:


 


1 For outraging public decency and S5 what are the penalties and what do you think would be likely in my case?


 


2 If I am convicted of outraging public decency would I be put on the Sex Offenders Register?
1 S5 only carries a fine.

Outraging public decency is contrary to common law so the sentences rack up a bit.

I would imagine they would probably fine you for outraging public decency. I suppose there is a chance of a community order depending on the evidence. Its one of those cases though where there are no real issues with which probation can help. It was just a stupid thing to do an out of character.


2 No.

They can make a sexual offence prevention order though but they won't. Its got nothing to do with sex offences.
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Customer: replied 3 years ago.

1 Should I offer to send (through the police) an apology to the ladies who I upset. I feel I want to but I am not sure what the legal implications are. I have already admitted to the police that I peed in the waste bin.


 


2 I have been told to expect to be asked to come in for a taped interview once the police have obtained CCTV footage to talk about the allegations made by the ladies about me. Should I arrange to take a solicitor with me or will that make the police more keen to pursue a harder line?


 


3 Should I appoint a solicitor located near to where this all happened in order to reduce professional travelling costs or do you think I will be interviewed and, if necessary, seen in a magistrates court local to my home?


 


4 Should I get a doctor's note explaining that I have an enlarged prostate and that one symptom of this is the need for urgent urination.


 


5 I a Caution an option for the police and should I accept it if they offer it?
1 If you have already admitted it then this would do no harm. In any event your point is not really that you did not do what is alleged. If you haven't been interviewed yet though I wouldn't do it now.

2 No, absolutely you need a solicitor.

3 Usually cases are transferred to where the offence took place.

4 Not at this stage. Its something you may need at some point but not now.

5 It depends what its for. Certainly not for indecent exposure as you will have to sign the sex offenders register.
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Customer: replied 3 years ago.

I have been asked to pay a Fixed Penalty Notice fine of £90 or go to court.


A I understand that your view is that saying I had an urgent need to pee due to a medical condition would not be well received, also
B The situation was aggravated by my exposing myself, which could not reasonably be attributed to a medical condition.
Because of A and B above it does not seem like a good idea to go to court. Is that what you think?


2 I wrote out a statement, for my own use, explaining what happened, drawing attention to the facts that
a I felt I had taken the least worst course of action (i.e. Peeing in a waste bin rather than on a seat or the floor) and,
b I had to pee due to a medical condition
c I had gone to great lengths to ensure I did not expose myself (although this was insufficient, it seems, in the event
Should I read this to the police and ask for its contents to be reorded against the FPN record?


3 Should I take a solicitor with me or is that overkill now?


4 I would like to send an apology to the ladies involved (through the police). Is this a good idea now that I know what the police propose?


5 On the British Transport Police web-site it says that they will keep a record for "administrative purposes" and take the FPN into account if something happens again. I assume that is reasonable and I should not complain about it. What do you think?


6 Also on the web-site it says that
i) the FPN will not be recorded on the Police National Computer
ii) it would not be cited in a DBS (ex CRB) check
iii) that I would not have a criminal record as a result.
Is this what you understand?
Pay the FPN.

Why are you going to the police station if they have given you an FPN?
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Customer: replied 3 years ago.

They offered to come to my home but I preferred to vist the police station. I did not want to have a police car outside my house.
No, and also it will just rob you of your rights under PACE.

You do need a solicitor. An FPN may be a good deal depending on what they can prove. Make sure you arrange a solicitor to attend with you
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Customer: replied 3 years ago.

When you say, "No, it will just rob you of your rights under PACE", do you mean that I should not read a statement (my item 2 above) or that I should not send an apology (my item 4 above) or both?


 


Note that I have admitted to the police that I peed in the waste bin and two ladies saw me do it. Also I believe they have CCTV. I therefore believe that it is not worth going to court and in any event, if I do not get a criminal record I am happy to go with the FPN.
No, the interview at home will remove your rights under PACE.

In this particular case, there is probably not point in reading a statement. Prepared statements are all very well when you need to comment on some offences but be quiet about others but there's no point here. If you don't admit then they will probably just charge you.

An FPN is not a criminal record but it might show on your enhanced CRB check. Although it is probably only for S5 public order anyway.
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Customer: replied 3 years ago.

I have been told by the police that the £90 FPN is for S5. I have already admitted to the offence.


 


I do not have a solicitor lined up. If in the meeting they want more than a simple admission and the cash payment, can I say that I do not want to go further without a solicitor being present ?


 
Yes, they should offer you one in police custody although if you are just there for S5 then the duty solicitor scheme might say that doesn't require a solicitor as the consequence is only a fine.

The trouble is that its all very well for them to take that view but the risk is more serious offences so its a good idea to get a solicitor to negotiate things.
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