Can a kiss on a bus count as public disorder?

A spate of recent cases involving public displays of affection highlight that, for some, it can be an emotive subject

The song was wrong – a kiss isn’t just a kiss. Or at least not on the No 89 to Blackheath, according to two passengers who say they were kicked off their London bus when the driver objected to their public display of affection.

Jack James, 23, said his partner’s quick peck led to a homophobic tirade from the driver. The story echoes a similar report from Brighton, where two women said they were asked to leave a Sainsbury’s store when a customer complained they were kissing. Outraged equality campaigners reacted by staging a kiss-in in the store – a tactic that was tried out in similar circumstances in a Soho pub a few years ago when a gay couple on their first date were chucked out of the John Snow for locking lips.

Of course it is the discrimination against same-sex couples that is concerning in these cases, but is snogging in public allowed – or do we need to return to the public-information posters they used to have in swimming pools which coyly asked “patrons [to] kindly refrain from … petting”?

Lawyer Mark Schwarz, who defended Stephen Gough, AKA the Naked Rambler, says that unless there is discrimination under civil law, “if someone is doing something on your property, you have a right to tell them to leave because you are taking away their licence to be there”.

However, public displays of affection would only be a criminal offence under the Public Order Act if the conduct was likely to cause harassment, alarm or distress – although it’s hard to see how any of these might apply to the incidents in the bus, pub or supermarket incidents. But to counteract this there is the Human Rights Act, which allows freedom of expression and the right to a private life, he points out. If the kissing leads to fondling and then gets out of hand, a couple could be done for public indecency, but this would be up to the police and legal system to decide. “It also depends on the circumstances – where it takes place, are there children around, how long does it go on for, and how intimate it is.”

“But,” he points out, “the key point is if a gay couple do one thing and a straight couple do the same, the gay couple should not get closer attention by the legal system.”

Powered by article was written by Homa Khaleeli, for The Guardian on Monday 20th October 2014 18.50 Europe/London © Guardian News and Media Limited 2010