Police, Crime, Sentencing and Courts Bill

Written Evidence Submitted by the Law Commission . (PCSCB19)

Introduction

1.1 The Law Commission was set up by the Law Commissions Act 1965 as an independent body to review and recommend reform to the law of England and Wales. The Law Commission aims to ensure that the law is fair, modern, simple and cost-effective.

1.2 Clause 59 of the Police, Crime, Sentencing and Courts Bill 2021 ("the Bill") implements recommendations we made in our 2015 report to restate the common law offence of public nuisance in statute. [1]

1.3 That report was part of a wider project on simplification of the criminal law which formed part of our tenth programme of law reform. [2] The purpose of simplification, as set out in the 2010 consultation paper in the same project, is to review old common law offences, consider whether they are still necessary, and if so, how they could be restated in statute in a simpler and more comprehensible form. [3]

1.4 Here we summarise the main recommendations in our report and explore some aspects of public nuisance, as restated in clause 59 of the Bill. Part 1 provides an overview and outlines a number of our recommendations, Part 2 discusses the scope of the offence of public nuisance and the relevance of charging practices. Part 3 reflects on clause 59 of the Bill.

 Public nuisance

Part 1 – Overview and our recommendations

1.5 Public nuisance is a common law offence. It has been defined as follows: [4]

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 or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.

1.6 The conduct element of the offence is an act or failure to act when under a legal duty which causes a "common injury". This "requirement of common injury" to found liability can take two forms: [5]

(1) Danger, annoyance, inconvenience or loss of amenity affecting those present in a local area; or

(2) The obstruction of a public right such as right of way.

This "common injury" is the consequence element of the offence. [6]

1.7 The fault or mental element of the offence relates to the consequence element:

There is no requirement of intention or recklessness in the offence of public nuisance; the fault element is one of negligence. The defendant is liable if he or she knew or ought to have known of the risk of the kind of nuisance that in fact occurred. [7]

1.8 Public nuisance is a civil tort as well as a crime. As we set out in the report, the definitions for each are "identical, except that a private individual can sue for the tort only if [they] suffer damage over and above the effect on the general public." [8] There is also a separate civil tort of private nuisance. Instead of relating to the rights of members of the public to enjoy public spaces and use public rights, private nuisance relates to individuals’ property rights. [9]

1.9 Returning to the consequence element, Clerk & Lindsell note that "[t]he element which all public nuisances, whether at common law or by statute, have in common with private nuisances is that of annoyance or inconvenience." [10] Annoyance in the context of nuisance is a legal term of art that does not connote merely feeling annoyed. It requires "a real interference with the comfort … of living according to the standards of the average man". [11] The term "annoyance" has been applied to:

(1) allowing a field to be used for holding an all-night "rave"; [12]

(2) conspiring to switch off the floodlights at a football match so as to cause it to be abandoned; [13]

(3) engaging in persistent calls to charity helplines (including 890 calls to Childline and approximately 400 calls to Samaritans); [14] and

(4) "such annoyances as noise, dirt, fumes, noxious smells and vibrations emanating from neighbouring land". [15]

1.10 Public nuisance can be tried either in the Crown Court or in a magistrates’ court. As to penalty, "[a]s in all common law offences where statute does not provide to the contrary, when it is tried in the Crown Court there is an unlimited power of imprisonment." [16]

1.11 Our recommendations were designed to simplify and clarify the law. We did not propose a substantial re-working of the offence itself. We recommended that the common law offence of public nuisance be replaced by a statutory offence, with two significant changes to narrow its scope: 

(1) raising the fault or mental element of the offence by requiring that the defendant intended their conduct to cause, or was reckless as to whether it would cause, the harm or obstruction concerned, and

(2) including a defence of reasonableness. [17]

1.12 In relation to the defence of reasonableness, we noted:

The defence would include cases where the defendant’s conduct is in exercise of a right under Article 10 (freedom of expression) or 11 (freedom of assembly and association) of the European Convention on Human Rights. Under section 3 of the Human Rights Act 1998, legislation must be read and given effect in a way which is compatible with the Convention rights; accordingly, references to reasonableness would be read as including the exercise of Convention rights. [18]

1.13 We also recommended that the offence should be triable in either the Crown Court or a magistrates’ court. [19] We did not recommend what the sentencing powers for a newly codified offence should be, but we did note that "[a]s the offence is intended to address serious cases for which other offences are not adequate, if a maximum sentence is set it should be high enough to cover these cases." [20]

1.14 For ease of reference we reproduce here our summary of recommendations on public nuisance:

3.84 The new offence of intentionally or recklessly causing a public nuisance should be formulated so as to cover:

(1) voluntary conduct by the defendant (including omissions, where the defendant is under a duty at common law or by statute);

(2) which causes:

(a) serious harm to members of the general public or a section of it, or

(b) obstruction to the public or a section of it in the exercise or enjoyment of rights common to the public at large;

(3) where the defendant intended that conduct to cause, or was reckless as to whether it would cause, such harm or obstruction;

(4) unless the defendant’s conduct was reasonable in the circumstances as he or she knew or reasonably believed them to be.

3.85 In the foregoing recommendation:

(1) serious harm to a person means that that person suffers:

(a) death, personal injury or disease;

(b) loss or damage to property; or

(c) serious distress, annoyance, inconvenience or loss of amenity;

or is put at risk of suffering any of these things. [21]

Part 2 – Scope and charging practices

1.15 We did not specifically consider whether the common law definition of the offence, which includes "annoyance" and "inconvenience" within the consequence element should be narrowed. We did consider narrowing the scope of the offence to local nuisances (a geographical narrowing) or whether it should exclude conduct already covered by other offences (a narrowing due to legal overlap). We did not recommend narrowing the scope in either of these ways. [22]

1.16 One consideration was whether to re-name the offence. We rejected that: [23]

…we do not see a realistic alternative to "nuisance", which is used with a similar meaning in many other statutes. We therefore provisionally suggest that the new offence be described as "intentionally or recklessly causing a public nuisance", though questions of naming are ultimately for those who draft the relevant statute.

1.17 In the report we set out the practice in charging the offence: [24]

In current practice the offence of public nuisance is mainly used for various forms of misbehaviour in public. Anecdotal evidence from the College of Policing gives, as typical examples, obstructing the highway, hanging from bridges, lighting flares or fireworks at football matches, extinguishing floodlights at matches, littering forests with excrement and hosting acid house parties.

1.18 The breadth of the offence means that it has been found to have occurred in a wide range of circumstances. [25] These have included, for the civil tort:

(1) emission of noxious smells from a chicken-processing factory; [26]

(2) mooring of boats and pontoons so as to obstruct river navigation; [27]

(3) selling dangerous but not prohibited drugs from a shop. [28]

Examples in the criminal context include:

(4) allowing a field to be used for holding an all-night "rave"; [29]

(5) conspiring to switch off the floodlights at a football match so as to cause it to be abandoned; [30]

(6) engaging in persistent calls to charity helplines (including 890 calls to Childline and approximately 400 calls to Samaritans); [31] and

(7) conspiring to commit acts of terrorism. [32]

1.19 Much of this conduct falls also falls under other offences. In the report, we surveyed the types of overlapping offences: [33]

2.32 The following examples of offences overlapping with behavioural nuisance are listed in R v Rimmington [34] and in the [consultation paper]:

(1) Public order offences, in particular violent disorder, affray and threatening or abusive behaviour.

(2) Other offences of public misbehaviour, such as drunk and disorderly behaviour, harassment, indecent exposure, voyeurism and holding raves in breach of statutory requirements.

(3) Bomb hoaxes.

(4) Obstructing the highway.

(5) Postal and communications offences, including sending a substance intending to induce a belief that it is noxious, sending through the post anything likely to injure a postal worker or anything indecent or obscene, sending indecent, threatening or false communications and improper use of a public electronic communications network.

1.20 In R v Rimmington, [35] the House of Lords considered the problem of overlapping offences in the context of public nuisance. Lord Bingham surveyed the panoply of statutory instruments that address much of what had been addressed by the common law offence of public nuisance. These included various environmental nuisances, public health nuisances (including tubercular children being taken in public by their parents and the supply of food unfit for human consumption) and communication nuisances (for example, persistent telephone calls). He held that where a common law offence covers the same conduct as a statutory offence, the latter should generally be preferred, "unless there is good reason for doing otherwise." [36]

1.21 The discussion of the breadth of the common law offence in Rimmington places emphasis on the practice of charging specific, targeted statutory offences where appropriate. Should the common law offence be codified, there will be conduct that could be prosecuted under both specific environmental, public order and other statutory offences and the new statutory formulation of public nuisance. This was a matter we considered in some detail in the report, concluding: [37]

3.80 We consider that, even if public nuisance becomes a statutory offence, it will still be preferable to use more specific statutory offences when available, provided that these fully reflect the gravity and nature of the defendant’s wrongdoing. At present this result is achieved by the principle in Rimmington that a statutory offence should be preferred to a common law one. Once that principle no longer applies (because public nuisance will have become a statutory offence) it will be desirable to preserve this preference by other means.

3.81 If a statutory offence of public nuisance is created, the CPS may wish to consider drawing up prosecution guidelines to clarify the proper scope of the offence. Among other things, this guidance could state that the offence should not be used when a more specific offence is available except for good reasons.

1.22 It is worth observing that this will not be a novel situation. As for other overlapping statutory offences, prosecutors should ensure that charges are selected in a principled way: where a specific, narrower statutory offence covers conduct and will allow an appropriate sentence to be formulated, it should be preferred. [38]

Part 3 – Clause 59 of the Bill

1.23 Clause 59 of the Bill is titled "Intentionally or recklessly causing public nuisance". As currently drafted it reflects our recommendations to restate the existing common law offence of public nuisance, narrowed as we recommended by raising the fault element and including a defence of reasonableness. [39]

1.24 As we recommended, sub-clause 59(1)(c) narrows the common law offence by requiring intention or recklessness in relation to one of the consequences set out in sub-clause 59(1)(b), rather than mere negligence as is the case for the common law offence. [40]

1.25 Sub-clause 59(3) of the Bill includes a defence of reasonable excuse. This is consistent with our recommendation that the codified offence should incorporate a defence where "the defendant’s conduct was reasonable in the circumstances as he or she knew or reasonably believed them to be." [41]

1.26 Sub-clause 59(4) of the Bill imposes a maximum penalty of ten years’ imprisonment, which is in line with our suggestion that the maximum sentence should be high enough to cover the serious cases it is intended to address for which other offences are not adequate. [42]

24 May 2021