Tuesday, 24 April 2012

Odd Corners of the Criminal Law - Public Nuisance

Public Nuisance (also known as Common Nuisance) is an offence under common law and it is triable either-way - that is, either summary trial by Magistrates or upon indictment in the Crown Court where there would be a judge and a jury.  Public Nuisance and Private Nuisance are also civil wrongs (torts).  This is not considered further here.

The offence is defined as follows:

A person is guilty of a public nuisance who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.

Over the years, examples
of public nuisance have included: obstructing the highway,blasting and quarrying near built-up areas, allowing land to be used as a dump, noisy parties, bomb hoaxes and false calls to emergency services etc. 

This definition, which appeared in Stephen's Digest of the Criminal Law (1877), was approved by the House of Lords as recently as R v Rimmington and R v Goldstein [2006] 1 AC 459 (HL), [2005] UKHL 63. Lord Bingham opened his speech by stating - "These appeals, heard together, raise important and difficult questions concerning the definition and ingredients, today, of the common law crime of causing a public nuisance. The appellants contend that, as applied in their cases, the offence is too imprecisely defined, and the courts' interpretation of it too uncertain and unpredictable, to satisfy the requirements either of the common law or of the European Convention on Human Rights. A question also arises on the mens rea which must be proved to establish the offence."

The two appeals are interesting.  (1) Rimmington concerned a person who engaged in a campaign of sending racially abusive hate mail. It was held that this did not fall within the offence, which only addressed acts or omissions which injured the public collectively and not series of acts against individuals.  (2) Goldstein concerned a person who put salt into a letter as a joke, thus causing an anthrax scare and disrupting the sorting office. It was held that the defendant did not satisfy the fault element of the offence, which required that he should reasonably have foreseen the consequences of his actions.

Lord Bingham discussed the present-day status of the offence.  He gave several examples of situations where statutory provisions now existed covering some of the ground covered by public nuisance.  In such situations, the statutory offence should be the one charged.   For example, there are now many statutory environmental protection offences.  "Where Parliament has defined the ingredients of an offence, perhaps stipulating what shall and shall not be a defence, and has prescribed a mode of trial and a maximum penalty, it must ordinarily be proper that conduct falling within that definition should be prosecuted for the statutory offence and not for a common law offence which may or may not provide the same defences and for which the potential penalty is unlimited."  Lord Bingham went on to say that " the circumstances in which, in future, there can properly be resort to the common law crime of public nuisance will be relatively rare."

In 2010, the Law Commission consulted on proposals to amend the law - see Simplification of the Criminal Law: Public Nuisance and Outraging Public Decency - Law Co. No. 193   In the consultation paper, the Commission was particularly critical about aspects of the definition of this offence.  This old-fashioned  definition cannot truly be said to be acceptable in a modern system of criminal law.  However, that is sometimes the nature of the common law in which the old survives until finally removed by Parliament.
The Commission would prefer to see a replacement statutory offence perhaps with a stipulated maximum penalty.


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