Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a joke. The envelope had leaked causing a terrorist scare.
Held: The common law offence of public nuisance had been substantially but not completely superceded by various statutory offences. Some old convictions for the offence would not now be repeated: ‘the circumstances in which, in future, there can properly be resort to the common law crime of public nuisance will be relatively rare.’ There may be a strong case for abolishing the crime of public nuisance, but ‘as the courts have no power to create new offences . . so they have no power to abolish existing offences. That is a task for Parliament, following careful consideration . . whether there are aspects of the public interest which the crime of public nuisance has a continuing role to protect. It is not in my view open to the House in resolving these appeals to conclude that the common law crime of causing a public nuisance no longer exists. ‘
The House considered whether the offence was sufficiently well defined to meet Human Rights standards. Lord Bingham of Cornhill said: ‘There are two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done. If the ambit of a common law offence is to be enlarged, it ‘must be done step by step on a case by case basis and not with one large leap.’ The offence met that standard.
Lord Bingham of Cornhill accepted the following as an accurate definition of the crime of public nuisance: ‘A person is guilty of a public nuisance (also known as common 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, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.’
An essential element of the offence was that the public or some section of it was intended to be affected. In neither case was that the intention. Each defendant had intended his acts to affect only one individual at a a time. Baroness Hale said: ‘It is not permissible to multiply separate instances of harm suffered by individual members of the public, however similar the harm or the conduct which produced it, and call them a common injury.’
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
Times 28-Oct-2005, [2005] UKHL 63, [2005] 3 WLR 982, [2006] 1 AC 459, [2006] 1 Cr App R 17, [2006] 2 All ER 257, [2006] Crim LR 153, [2006] UKHRR 1, [2006] HRLR 3
Bailii, House of Lords, Bailii
European Convention on Human Rights 7(1)
England and Wales
Citing:
Cited – Rex v White and Ward 20-May-1757
The court considered the law of public nuisance to be the nuisance to ‘all the King’s liege subjects’ living in Twickenham and travelling and passing the King’s highway was impregnating the air with ‘noisome and offensive stinks and smells’. Each . .
Cited – Rex v Vantandillo 1815
The mother of a young child took him through a public street well knowing that the child suffered from the contagious, infectious and dangerous disease of smallpox.
Held: She was properly convicted and sentenced to three months’ imprisonment . .
Cited – Rex v Moore 25-Jan-1832
Moore ran a rifle range in Bayswater. His customers shot at pigeons, which caused a crowd to gather outside and in neighbouring fields to shoot at the pigeons which escaped, causing noise, damage, disturbance and mischief.
Held: On conviction . .
Cited – Rex v Medley 1834
The defendant directors of a company were accused of committing a public nuisance by acts causing pollution of the River Thames.
Held: The jury was directed that directed the jury that the ignorance of the directors was no defence if they had . .
Appeal from – Goldstein, Rimmington v Regina CACD 28-Nov-2003
Two defendants appealed in respect of alleged offences under common law of causing a public nuisance. One had sent race hatred material, and the other bomb hoaxes, through the post. Both claimed that the offence was so ill defined as to be an . .
Cited – Soltau v De Held 11-Dec-1851
The court considered an allegation of causing a public nuisance: ‘I conceive that, to constitute a public nuisance, the thing must be such as, in its nature or its consequences, is a nuisance – an injury or a damage, to all persons who come within . .
Cited – Rex v Henson 1852
The defendant was accused of committing a common nuisance. He led through the streets a horse which was infected with a ‘contagious, infectious and dangerous disease’. He knew of the danger.
Held: The conviction was proper. . .
Cited – Regina v Crawley 1862
The defendant was convicted of committing a public nuisance by sending unfit meat to a meat salesman. . .
Cited – Regina v Jarvis 1862
The defendant was convicted of committing a public nuisance by bringing unfit meat to the market. . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Sherras v De Rutzen QBD 2-May-1895
The court considered the need to establish mens rea where it was dealing with something which was one of a class of acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’, and ‘There . .
Cited – Regina v Stephens 1866
The court was asked whether the owner of a slate quarry was answerable for a public nuisance caused by his workmen without his knowledge and contrary to his general orders.
Held: Mellor J: ‘It is quite true that this in point of form is a . .
Cited – Regina v Stevenson 1862
The defendant was convicted of causing a public nuisance by exposing for sale unfit meat. . .
Cited – Regina v Holliday and Leboutillier CACD 2004
The appellants were animal liberation activists who had pleaded guilty to causing a public nuisance by making a large number of telephone calls to employees and shareholders of certain companies whose activities the appellants opposed. The calls . .
Cited – Regina v Lowrie CACD 2004
The defendant had pleaded guilty to causing a public nuisance. He had made repeated false alarm calls to the emergency services. He appealed his sentence of eight years imprisonment on twelve counts.
Held: The appeal failed. . .
Cited – Sedleigh-Denfield v O’Callaghan HL 24-Jun-1940
Occupier Responsible for Nuisance in adopting it
A trespasser laid a drain along a ditch on the defendant’s land. Later the defendants came to use the drain themselves. A grate was misplaced by them so that in a heavy rainstorm, it became clogged with leaves, and water flowed over into the . .
Cited – Attorney-General v PYA Quarries Ltd CA 1957
In a relator action, an injunction was sought to prevent the respondent from emitting quantities of dust from their quarry. The court had to decide what were the constituents of the offence of a public nuisance, and how this differed from a private . .
Doubted – Regina v Johnson CACD 14-May-1996
The defendant had used public telephones to cause nuisance, annoyance, harassment, alarm and distress. He had made hundreds of obscene telephone calls to at least 13 women, and was convicted of causing a public nuisance. He argued that no call . .
Cited – Regina v Harley CACD 2002
Over 3 months in the summer of 2001 the appellant had made nearly 5000 calls to more than 1000 people. A sentence of 21 months’ imprisonment was for special reasons reduced to nine months’. . .
Cited – Regina v Madden CACD 1975
The court considered an appeal against a conviction for causing a public nuisance by the making of bomb hoax telephone call to a steel works. The message was received by a telephonist, who informed the engineer and also the police. The police . .
Cited – Regina v Eskdale CACD 21-Jun-2001
The defendant had made some 1000 obscene and threatening telephone calls to women over a two week period. Whilst not mentally ill, the probation report indicated that he was a serious risk to the public, and he was suffering profound problems of . .
Cited – Regina v Ong CACD 2001
The defendant sought leave to appeal against sentence of four years for conspitracy to cause a public nuisance having pleaded guilty. He had planned to turn off the floodlights at a Premier Division football match between Charlton Athletic and . .
Cited – Regina v Shorrock CACD 1993
The defendants used land for an unauthorised ‘acid party’ which caused substantial inconvenience and disruption to neighbours. The defendant denied that he had had the requisite knowledge to be criminally liable.
Held: This was capable of . .
Cited – Director of Public Prosecution v Withers HL 20-Nov-1974
The House was asked to consider whether there existed the crime of a conspiracy to commit a public mischief.
Held: There was no such crime, since it was so undefined as to be unfair to any defendant. Although at common law no clear distinction . .
Cited – Regina v Ruffell CACD 1991
The appellant had pleaded guilty to causing a public nuisance, and had been sentenced to a suspended term of 12 months’ imprisonment and a fine of andpound;7000. The nuisance had consisted of an ‘acid house’ party, which had attracted some thousands . .
Doubted – Regina v Norbury 1-Mar-1977
(Norwich Crown Court) Between July 1972 and November 1976, 494 women resident in Norfolk reported to the police a total of 605 obscene telephone calls from the defendant. The offence would normally be a summary offence with a maximum of . .
Cited – Regina v Millward CACD 1986
Over nearly two years the appellant made thousands of telephone calls to a woman employed at a police station. On one day a total of 636 calls were made. He pleaded guilty to two counts of public nuisance. The whole operation of the police station . .
Cited – Regina v Soul CACD 1980
The appellant, had been convicted of conspiring to cause a public nuisance had agreed with others to secure the unlawful release of a restricted Broadmoor patient.
Held: The appeal failed. The court rejected an argument, based on R v Madden . .
Adopted – Regina v Misra; Regina v Srivastava CACD 8-Oct-2004
Each doctor appealed convictions for manslaughter by gross negligence, saying that the offence was insufficiently clearly established to comply with human rights law, in that the jury had to decide in addition and as a separate ingredient whether . .
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Cited – SW v The United Kingdom; CR v United Kingdom ECHR 22-Nov-1995
Criminal Law Change not retrospective
The law that marital rape was an offence, was not to be treated as retrospective despite being a common law change. The Court rejected complaints by two applicants who had been found guilty of raping their wives which was an undoubted extension of . .
Cited – Kokkinakis v Greece ECHR 25-May-1993
The defendant was convicted for proselytism contrary to Greek law. He claimed a breach of Article 9.
Held: To say that Jehovah’s Witness were proselytising criminally was excessive. Punishment for proselytising was unlawful in the . .
Cited – G v Federal Republic of Germany ECHR 1989
A norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to foresee, if need be with appropriate advice, the consequences which a given course of conduct may entail. However, the law may be clarified . .
Cited – X Ltd and Y Ltd v United Kingdom ECHR 1982
The Commission considered the common law offence of blasphemous libel as an offence defined under common law rather than statute law.
Held: ‘The Commission considers that the same principles also apply to the interpretation and application of . .
Cited – Regina v J HL 14-Oct-2004
The defendant was to have been accused of having unlawful sexual intercourse with a girl under 16. Proceedings could not be brought, because the allegation was more than a year old, and he was instead accused of indecent assault, but on the same . .
Cited – Hashman and Harrup v The United Kingdom ECHR 25-Nov-1999
The defendants had been required to enter into a recognisance to be of good behaviour after disrupting a hunt by blowing of a hunting horn. They were found to have unlawfully caused danger to the dogs. Though there had been no breach of the peace, . .
Cited – Wingrove v The United Kingdom ECHR 25-Nov-1996
The applicant had been refused a certification certificate for his video ‘Visions of Ecstasy’ on the basis that it infringed the criminal law of blasphemy. The Court found that the offence was prescribed by law and served the legitimate aim of . .
Cited by:
Cited – Rose vDirector of Public Prosecutions Admn 16-Mar-2006
The defendant appealed his conviction for outraging public decency by behaving in an indecent manner contrary to common law. He had been in the foyer of a bank at night with a girl who performed oral sex. The action could have been seen, but was . .
Cited – Christian and others v The Queen PC 30-Oct-2006
(The Pitcairn Islands) The defendants appealed convictions for assorted sexual offences against underage girls. They denied that the laws under which they were convicted had applied to the Pitcairn Islands.
Held: The appeals against conviction . .
Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Cited – Director of Public Prosecutions v Fearon Admn 10-Feb-2010
The prosecutor appealed against the defendant’s acquittal for causing a public nuisance in having approached a woman police officer posing as a prostitute. He said that as a single act it could not amount to a nuisance. The prosecutor argued that . .
Cited – Regina v W CACD 2-Mar-2010
The defendant appealed against his conviction for misconduct in public office. As a police officer he had used an official credit card to pay for personal items. He said that he believed this was allowed where he intended to discharge the debt. He . .
Cited – Kenny v Regina CACD 30-Jan-2013
The appellant had made a loan to a third party defendant in criminal fraud proceedings. At the time he did not know that that third party was subject to a restraint order under the 2002 Act. When he did come to know of the order he was asked to say . .
Cited – Child Maintenance and Enforcement Commission v Gibbons; Same v Karoonian CA 30-Oct-2012
Non-resident parents in each case appealed against suspended orders of imprisonment for non-payment of child support. They argued that the procedures used were indistinguishable from those held to be human rights non-compliant in Mubarak.
Cited – Coll v Floreat Merchant Banking Ltd and Others QBD 3-Jun-2014
The court was asked whether it was possible to bring contempt proceedings against a solicitor for the breach of an undertaking other than one given to the court. The parties had been employee and employer. On the breakdown of that relationship, the . .
Cited – ABC and Others, Regina v CACD 26-Mar-2015
Several defendants sought to appeal against convictions. They were public officials accused of having committed misconduct in public office in the sale of information relating to their work to journalists. The journalists were convicted of . .
Cited – Roberts and Others v Regina CACD 6-Dec-2018
Sentencing of Political Protesters
The defendants appealed against sentences for causing a public nuisance. They had been protesting against fracking by climbing aboard a lorry and blocking a main road for several days.
Held: The appeals from immediate custodial sentences were . .
Cited – Johnson v Westminster Magistrates’ Court Admn 3-Jul-2019
Public Office Misconduct – Acting As not While
The claimant sought judicial review of a decision to issue a summons against him alleging three offences of misconduct in public office. He was said to have issue misleading statements in support of the campaign leading up to the Referendum on . .
Lists of cited by and citing cases may be incomplete.
Crime, Human Rights
Leading Case
Updated: 09 November 2021; Ref: scu.231607