The always informative and often fascinating UK criminal law blog has given us some interesting background to the fixed penalty notice for being drunk and disorderly received by Monty Panesar on 4th August. Panesar apparently urinated on two bouncers from a night-club balcony. The learned editor, Dan Bunting, points out that Mr Panesar was lucky to be dealt with in this lenient way because he might have committed at least 5 other separate offences, and he set law students a challenge to see if they could identify them all.
As no law student seems to have taken him up on it, here are my answers:Assault. It is a common misconception that assault requires a punch or a kick. In fact it can be committed without any contact at all. A mere threat to inflict immediate unlawful violence is an assault. If any unlawful force is in fact applied with hostile intent, that also constitutes an assault, or if one wishes to be very technical, a battery. I have no doubt that urinating with hostile intent would count.
If his behaviour was “lewd, obscene and disgusting” the common law offence of outraging public decency would be made out. (Actually UK Criminal Law gave that one away) According to the distinguished 19th Century criminal lawyer William Russell the offence covered:
“all open lewdness … and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order….”
Mr Panesar should count himself lucky that he was not charged with this offence which can be punished by life imprisonment. I hope Dan Bunting will forgive me for quoting his own wonderful example of Sir Charles Sedley who committed the offence in 1662 (according to Pepys) by standing:
… naked on a balcony in Covent Garden before urinating on several people below. His behaviour was perhaps worse due to the nudity and the fact that he ”took a glass of wine and washed his prick in it and then drank it‘
That at least is a seriously aggravating factor that has not been alleged against Panesar.
He could, theoretically at least, have received a concurrent life sentence for the further common law offence of causing a public nuisance; that is, to do an act not warranted by law if the effect is to “endanger the life, health, property or comfort of the public.” As recently as 2005 in the case of Goldstein and Rimmington  UKHL 63 the House of Lords decided that this remained part of English law, citing with approval the very first (1822) edition of Archbold (still the criminal lawyer’s bible) which listed the sort of activities which might be considered a nuisance such as:
“… using a shop in a public market as a slaughter house, erecting a manufactory for hartshorn, erecting a privy near the highway, placing putrid carrion near the highway, keeping hogs near a public street and feeding them with offal, keeping a fierce and unruly bull in a field through which there was a footway, keeping a ferocious dog unmuzzled and baiting a bull in the King’s highway.”
Piddling on bouncers is not specifically mentioned, no doubt because in 1822 it was considered less of a mischief than erecting manufactories for hartshorn. Nowadays a hartshorn manufactory might be regarded as a quaint “heritage” site while public urination is becoming less and less acceptable. Even so this charge might be harder to prove than the others. He could defend it by showing that his urination was directed towards the bouncers in particular, rather than towards the public in general. That is a good example of what is called in the trade “an unattractive defence”.
Modern lawmakers have been busy producing laws designed to further criminalise Mr Panesar’s behaviour. They might make it harder for him to run even an unattractive defence. It is hard to see how Mr Panesar could have urinated without intentionally exposing his genitals. If he did so with the additional “intent that someone would see them and be caused alarm and distress” he would have been guilty of “exposure” under S.66 of the Sexual Offences Act 2003. For this he could have received a sentence of up to 2 years imprisonment, and even (if he had received at least a 12 month community order) been placed on the Sexual Offenders Register. However, given that it would have been his first such offence the Sentencing Guidelines suggest a non-custodial sentence so perhaps he would be spared that humiliation, which might also have affected his ability to join the England team on some overseas tours.
The crime of criminal damage would inevitably have been committed if so much as a drop of Mr Panesar’s urine touched the bouncer’s clothing. This offence does not require more than “temporary impairment of value or usefulness” as the case of Hardman v. Chief Constable of Somerset  Crim. L.R. 330 makes clear. It is criminal damage to smear mud on a police cell wall so it is certainly also criminal damage to urinate on a bouncer’s clothing.
Finally Mr Panesar’s alleged behaviour would almost certainly amount to an offence under S.5 of the Public Order Act 1986 which requires only “disorderly behaviour … within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.” It is surely distressing at the very least to be sprinkled in this way, even by one of England’s best spin bowlers. If the prosecution were exceptionally tough they could consider a charge of affray under S.3 of the Public Order Act. It could be argued that he had used “unlawful violence” towards the bouncers, although perhaps “violence” is not really an apt word to describe urination. But the charge would fail because “a person of reasonable firmness present at the scene” would probably not “fear for his personal safety.” He might be guilty of an offence under S.4 of the same Act, but it is such a long, involved and frankly tedious section that you would not want to know about it.
Offences of urination are also quite commonly dealt with under local by-laws. One such used to be in force in Salisbury and many years ago I failed to achieve a conviction there while prosecuting a man under a nineteenth century by-law that prohibited “stalling in the street.” I seem to remember he was also accused of exposing his “person to the annoyance of passengers in the highway.” His defence was that he was emptying a can of beer and his thumb had been mistaken for what nineteenth century jurists called his “person”. Part of the secret of Mr Panesar’s bowling success lies in his enormous hands – his middle finger is four and a third inches long and were it not for the tell-tale shower of urine, a similar anatomical confusion might have been vaguely plausible here.
All things considered he would, as Mr Bunting sensibly suggests, probably be wise to pay the fixed penalty rather than contest the matter through the courts. He is a popular and effective cricketer and we must hope that he is at his sober best, and not distracted by legal worries, if he is selected for the remaining Ashes Test matches.