(back to preceding text)

    12.  All of the foregoing definitions, as I read them, treat the requirement of common injury as a, perhaps the, distinguishing feature of this offence.

The authorities: (1)

    13.  There are many authorities on this subject, and it is necessary to be selective. In R v White and Ward (1757) 1 Burr 333 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 defendant, on undertaking to avoid repetition, was fined 6s 8d. A mother of a young child who took him through a public street well knowing that the child suffered from the contagious, infectious and dangerous disease of smallpox, was convicted and sentenced to three months' imprisonment in the custody of the marshal: R v Vantandillo (1815) 4 M&S 73. The defendant in R v Moore (1832) 3 B&Ad 184 ran a rifle range in Bayswater where customers shot at pigeons, causing a crowd to assemble outside and in neighbouring fields to shoot at the pigeons which escaped, causing noise, damage, disturbance and mischief. On conviction the defendant undertook to discontinue the shooting and no penalty was imposed. R v Medley (1834) 6 C&P 292 arose from pollution of the River Thames. Denman CJ directed the jury that the ignorance of the directors was no defence if they had authorised a manager to conduct the works, and they were each fined £25. In Soltau v De Held (1851) 2 Sim NS 133, 142-143, 61 ER 291, 295, Kindersley V-C said:

"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 the sphere of its operations, though it may be so in a greater degree to some than it is to others."

R v Henson (1852) Dears 24, 169 ER 621 involved a mare which, like the child in R v Vantandillo 4 M&S 73, was infected with a "contagious, infectious and dangerous disease". The defendant, having brought the mare on to the highway with knowledge of its condition, was convicted of causing a common nuisance.

    14.  The House was referred to R v Stevenson (1862) 3 F&F 106, 176 ER 48, which concerned the exposing for sale of unfit meat. Similar authorities concern the bringing to market of unfit meat (R v Jarvis (1862) 3 F&F 108, 176 ER 49) and the sending to a meat salesman of meat unfit for human consumption (R v Crawley (1862) 3 F&F 109, 176 ER 49). It is not entirely clear that these offences were charged as common nuisances at common law. But it is clear that knowledge of the unfitness of the meat, or its intended sale for human consumption, was treated as an ingredient of the offences.

    15.  The issue in R v Stephens (1866) LR 1 QB 702 was 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. The jury had convicted. The case is important for the observations of Mellor J at pp 708-709:

"It is quite true that this in point of form is a proceeding of a criminal nature, but in substance I think it is in the nature of a civil proceeding, and I can see no reason why a different rule should prevail with regard to such an act as is charged in this indictment between proceedings which are civil and proceedings which are criminal. I think there may be nuisances of such a character that the rule I am applying here, would not be applicable to them, but here it is perfectly clear that the only reason for proceeding criminally is that the nuisance, instead of being merely a nuisance affecting an individual, or one or two individuals, affects the public at large, and no private individual, without receiving some special injury, could have maintained an action. Then if the contention of those who say the direction is wrong is to prevail, the public would have great difficulty in getting redress. The object of this indictment is to prevent the recurrence of the nuisance. The prosecutor cannot proceed by action, but must proceed by indictment, and if this were strictly a criminal proceeding the prosecution would be met with the objection that there was no mens rea: that the indictment charged the defendant with a criminal offence, when in reality there was no proof that the defendant knew of the act, or that he himself gave orders to his servants to do the particular act he is charged with; still at the same time it is perfectly clear that the defendant finds the capital, and carries on the business which causes the nuisance, and it is carried on for his benefit; although from age or infirmity the defendant is unable to go to the premises, the business is carried on for him by his sons, or at all events by his agents. Under these circumstances the defendant must necessarily give to his servants or agents all the authority that is incident to the carrying on of the business. It is not because he had at some time or other given directions that it should be carried on so as not to allow the refuse from the works to fall into the river, and desired his servants to provide some other place for depositing it, that when it has fallen into the river, and has become prejudicial to the public, he can say he is not liable on an indictment for a nuisance caused by the acts of his servants. It appears to me that all it was necessary to prove is, that the nuisance was caused in the carrying on of the works of the quarry."

Blackburn J, who had presided at the trial, agreed. He said at p 710:

"All that it is necessary to say is this, that where a person maintains works by his capital, and employs servants, and so carries on the works as in fact to cause a nuisance to a private right, for which an action would lie, if the same nuisance inflicts an injury upon a public right the remedy for which would be by indictment, the evidence which would maintain the action would also support the indictment. That is all that it was necessary to decide and all that is decided."

Thus the overlap between the criminal offence and the civil tort was affirmed, and this fact was relied on to justify a strict approach to the ordinary requirement of mens rea.

    16.  This strict approach was acknowledged by Wright J in Sherras v De Rutzen [1895] 1 QB 918, 922. Usually cited for its reference to the presumption that mens rea is an essential ingredient in every offence, this passage continues with a discussion of various exceptions where the presumption does not apply (footnotes omitted):

"Another class comprehends some, and perhaps all, public nuisances: R v Stephens where the employer was held liable on indictment for a nuisance caused by workmen without his knowledge and contrary to his orders; and so in R v Medley and Barnes v Akroyd. Lastly, there may be cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right: see per Williams and Willes JJ in Morden v Porter, as to unintentional trespass in pursuit of game; Lee v Simpson, as to unconscious dramatic piracy; and Hargreaves v Diddams, as to a bona fide belief in a legally impossible right to fish."

    17.  The next case which must be mentioned, Sedleigh-Denfield v O'Callaghan [1940] AC 880, was a case of private nuisance, concerned with the liability of an owner for continuing a nuisance originally caused, without his knowledge, by a trespasser. Viscount Maugham opined (at p 887):

"All that is necessary in such a case is to show that the owner or occupier of the land with such a possible cause of nuisance upon it knows or must be taken to know of it. An absentee owner or an occupier oblivious of what is happening under his eyes is in no better position than the man who looks after his property ….."

Lord Wright at p 904 formulated what has come to be accepted as the test:

"Though the rule has not been laid down by this House, it has I think been rightly established in the Court of Appeal that an occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for a nuisance is not, at least in modern law, a strict or absolute liability."

    18.  The leading modern authority on public nuisance is Attorney General v PYA Quarries Ltd [1957] 2 QB 169. This was a civil action brought by the Attorney General on the relation of the Glamorgan County Council and the Pontardawe Rural District Council to restrain a nuisance by quarrying activities which were said to project stones and splinters into the neighbourhood, and cause dust and vibrations. It was argued for the company on appeal that there might have been a private nuisance affecting some of the residents, but not a public nuisance affecting all Her Majesty's liege subjects living in the area. In his judgment Romer LJ reviewed the authorities in detail and concluded, at p 184:

"I do not propose to attempt a more precise definition of a public nuisance than those which emerge from the textbooks and authorities to which I have referred. It is, however, clear, in my opinion, that any nuisance is 'public' which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. The sphere of the nuisance may be described generally as 'the neighbourhood'; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue."

Denning LJ agreed. He differentiated between public and private nuisance at p 190 on conventional grounds:

"The classic statement of the difference is that a public nuisance affects Her Majesty's subjects generally, whereas a private nuisance only affects particular individuals."

He went on, at p 191, to say

"that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large."

    19.  In R v Madden [1975] 1 WLR 1379 the defendant made a hoax bomb call by telephone to a steel works. The message was received by a telephonist, who informed the engineer and also the police. The police informed the chief security officer of the works, who caused eight security men to carry out a search. This lasted for just over an hour before the telephone call was found to be a hoax. The defendant was convicted at trial but succeeded on appeal, because the recorder had directed the jury to consider potential and not actual danger and discomfort, and because the requirement of common injury was not met. Giving the judgment of the court, James LJ said at p 1383:

"It is, in our view, still an offence known to the law of this country to commit a public nuisance. A person who makes a bogus telephone call falsely giving information as to the presence of explosives may, in our view, if there is evidence, be shown to have committed an offence of public nuisance.

In this particular case the conviction must be quashed on two grounds. First, the directions which the recorder was persuaded by the Crown to give to the jury were not right in that those directions invited the jury to consider the potential danger to the public rather than the actual danger; or the potential risk to the comfort of the public as distinct from the actual comfort of the public. Secondly, on the evidence which I have recited, it was not possible for a jury, properly directed, to have arrived at the conclusion that a considerable number of persons were affected by the action of the appellant. It is quite clear that, for a public nuisance to be proved, it must be proved by the Crown that the public, which means a considerable number of persons or a section of the public, was affected, as distinct from individual persons."

(The first of these grounds would seem hard to reconcile with the decisions in R v Vantandillo 4 M&S 73 and R v Henson 169 ER 621.)

    20.  The decision of the Court of Appeal (Criminal Division) in R v Soul (1980) 70 Cr App R 295 is not easy to explain. The appellant, who had agreed with others to secure the unlawful release of a restricted Broadmoor patient, was charged and convicted of conspiring to effect a public nuisance. Her appeal failed. The court rejected an argument, based on R v Madden [1975] 1 WLR 1379, that the Crown had failed to prove any actual danger. No more than, at most, passing reference was made to the requirement of common injury. A critical commentary in [1980] Crim LR 234 suggested that public mischief, held by the House of Lords in R v Withers [1975] AC 842 not to be an offence, could in effect be restored by judicial legislation.

    21.  R v Ruffell (1991) 13 Cr App R (S) 204 was an appeal against sentence. 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 £7000. The nuisance had consisted of an "acid house" party, which had attracted some thousands of people. A side road to the site had been blocked by traffic. There had been very loud music, overnight and lasting for about 12 hours. The surrounding woodlands had been littered with human excrement. The appeal against the sentence of imprisonment failed, but the fine was quashed on the ground that the appellant had no means to pay it. The facts of R v Shorrock [1994] QB 279, which also involved an "acid house" party, were a little similar. The appellant accepted that a public nuisance had been caused, but denied that he had had the requisite knowledge to be criminally liable. Thus the issue concerned the mens rea which the Crown had to prove to establish guilt. Giving the judgment of a Court of Appeal which also included Simon Brown LJ and Popplewell J, Rattee J reviewed the authorities and concluded that the answer was that given by the House in Sedleigh-Denfield v O'Callaghan [1940] AC 880: the appellant was guilty of the offence charged (p 289)

"if either he knew or he ought to have known, in the sense that the means of knowledge were available to him, that there was a real risk that the consequences of the licence granted by him in respect of his field would be to create the sort of nuisance that in fact occurred"

    22.  R v Ong [2001] 1 Cr App R(S) 404 was an application for leave to appeal against a sentence of four years' imprisonment imposed on a plea of guilty to a court of conspiring to cause a public nuisance. The public nuisance which was planned was the extinguishment of the floodlights at a Premier Division football match between Charlton Athletic and Liverpool in order to make a fraudulent gain for a group of Far Eastern bookmakers. The plan, if implemented, would have plunged those attending the match, presumably a crowd of thousands, into darkness, and prevented them seeing the match they had paid to see. Leave was refused.

The authorities: (2)

    23.  I have reserved for separate consideration a line of recent authority much relied on by the Crown in the case of Mr Rimmington, but the correctness of which is challenged by him.

    24.  The line appears to begin with R v Norbury [1978] Crim LR 435, a case heard by His Honour Judge Beezley in the Crown Court at Norwich in March 1977. The defendant had over a period of some four years made 605 obscene telephone calls to 494 different women. The making of such calls was a summary offence punishable with a maximum fine of £50 under section 78 of the Post Office Act 1969, but the defendant was indicted for causing a public nuisance, an indictable offence for which there was no maximum penalty. His counsel moved to quash the indictment, I infer on the ground that the requirement of common injury was not met, but this argument was rejected. The judge ruled:

"It seems to me, dealing with the present indictment, that a repetition over a long period and on a number of occasions of telephone calls of an obscene nature, intending to cause offence and alarm and resulting in such offence and alarm to a large number of Her Majesty's subjects, selected from a telephone directory or merely by chance dialling is the very kind of act and, indeed, the very kind of series of acts which the public has an interest in condemning and has a right to vindicate."

In the light of this ruling the defendant pleaded guilty. The judge's observations, as quoted, are unexceptionable and must command unqualified assent. But they do not address the question whether separate calls to individual victims can satisfy the requirement of common injury as I have defined it in para 6 above. The commentator at [1978] Crim LR 435, 436 sounded a note of warning:

"The facts of the present case are strikingly different from the typical case of public nuisance which is obstruction of the highway. There might be some danger of public nuisance assuming the mantle of public mischief. The House of Lords has held that public mischief—even conspiracy to effect a public mischief—is not an offence known to the law: DPP v Withers [1975] AC 842; but there is no doubt that public nuisance is an offence. The question is as to how far it extends. The present case shows that it may have some potentiality for growth. Offences covering such a wide range of different matters with no obvious boundaries are only doubtfully compatible with the principle of legality—i.e. that no one should be punished for an act which was not declared by law to be an offence before the act was done."

    25.  The warning was not heeded. In R v Millward (1986) 8 Cr App R(S) 209 the defendant had made hundreds of telephone calls (636 in a single day) to a young woman police officer with whom he had become infatuated, at the police station where she worked. He had pleaded guilty to two counts of causing a public nuisance and the appeal, which did not succeed, was against a sentence of 30 months' imprisonment. The ingredients of the offence were not in issue, and the only reference to the requirement of common injury was in the judgment of the court delivered by Glidewell LJ:

"Quite apart from anything else, this disrupts the whole operation of the police station to which these calls are directed, because a member of the public may wish to report an urgent matter such as a criminal offence, and cannot do so or is delayed in doing so because of this kind of behaviour on the part of the appellant."

    26.  In R v Johnson (Anthony) [1997] 1 WLR 367, an appeal against conviction, the requirement of common injury was the central issue. The appellant had over a period of years made hundreds of obscene telephone calls to at least 13 women, and had been convicted of causing a public nuisance. It was argued on his behalf that (a) each telephone call was a single isolated act to an individual, and although that might have amounted to a private nuisance it was wrong to group all the calls together and to regard the cumulative effect as a public nuisance, and (b) that in any event the scale and width of the conduct complained of was insufficient to constitute a public nuisance. Tucker J, giving the reserved judgment of the court, rejected the argument. He ruled, at pp 370-371:

"In our judgment it is permissible and necessary to look at the cumulative effect of these calls, made to numerous ladies on numerous occasions in the case of each lady, and to have regard to the cumulative effect of the calls in determining whether the appellant's conduct constituted a public nuisance. In our opinion it was conduct which materially affected the reasonable comfort and convenience of a class of Her Majesty's subjects: see per Romer LJ in Attorney-General v PYA Quarries Ltd … It was a nuisance which was so widespread in its range, or so indiscriminate in its effect, that it would not be reasonable to expect one person to take proceedings on her own responsibility, but that they should be taken on the responsibility of the community at large: see Denning LJ ... It was proved by the Crown that the public, meaning a considerable number of persons or a section of the public, was affected, as distinct from individual persons."

    27.  There was a plea of guilty in R v Eskdale [2001] EWCA Crim 1159, [2002] 1 Cr App R(S) 118. The appellant had made about 1000 obscene telephone calls, some of them very highly objectionable, to 15 women over a period of two weeks. An appeal against a sentence of nine years' imprisonment was dismissed. There was also a plea of guilty in R v Harley [2002] EWCA Crim 2650, [2003] 2 Cr App R(S) 16. 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'. Sentences of 18 months' and five years' imprisonment were reduced to nine months' and 30 months' in R v Holliday and Leboutillier [2004] EWCA Crim 1847, [2005] 1 Cr App R(S) 349. 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 were designed to jam the company telephone switchboards, and some of them were threatening and intimidating. In R v Lowrie [2004] EWCA Crim 2325, [2005] 1 Cr App R(S) 530 the appellant appealed unsuccessfully against a sentence of eight years' imprisonment imposed on his pleas of guilty to 12 counts of causing a public nuisance. In each case the count was based on a hoax call to one of the emergency services.

The current standing of public nuisance

    28.  The appellants contended (1) that conduct formerly chargeable as the crime of public nuisance had now become the subject of express statutory provision, (2) that where conduct was the subject of express statutory provision it should be charged under the appropriate statutory provision and not as public nuisance, and (3) that accordingly the crime of public nuisance had ceased to have any practical application or legal existence.

    29.  There is a large measure of truth in the first of these contentions. Section 79(1) of the Environmental Protection Act 1990, as amended, establishes nine categories of statutory nuisance (the state of premises, smoke emissions, fumes or gases from dwellings, effluvia from industrial trade or business premises, accumulations or deposits, animals, noise from premises, noise from vehicles or equipment in a street and other matters declared by other Acts to be statutory nuisances). Section 33 controls the dumping of waste. The Act lays down a detailed procedure for securing abatement, provides for criminal proceedings and prescribes maximum penalties for failure to comply with an abatement notice: see, generally, McCracken, Jones, Pereira and Payne, Statutory Nuisance (2001), chapters 2, 3, 5, 8, 9 and 10. Section 85 of the Water Resources Act 1991 makes it an offence to pollute controlled waters. It prescribes a maximum penalty of three months' imprisonment and a fine of £20,000 on summary conviction, and two years' imprisonment and a fine on conviction on indictment. By section 137 of the Highways Act 1980 it is a summary offence punishable by a fine not exceeding level 3 on the standard scale wilfully to obstruct free passage along a highway. Section 1 of the Protection from Harassment Act 1997 creates a crime of harassment, punishable summarily by imprisonment for a maximum of six months and a fine on scale 5. If the harassment involves repeated threats of violence the defendant is liable under section 4, on conviction on indictment, to five years' imprisonment and a fine. Section 32 of the Crime and Disorder Act 1998 creates an offence of racially or religiously motivated harassment and prescribes maximum penalties. Section 63 of the Criminal Justice and Public Order Act 1994 confers powers on the police to remove persons attending or preparing for a rave "at which amplified music is played during the night (with or without intermissions) and is such as, by reason of its loudness and duration and the time at which it is played, is likely to cause serious distress to the inhabitants of the locality". Breach of the statutory requirements is punishable on summary conviction by imprisonment for up to three months and a fine not exceeding level 4 on the standard scale. By section 51 of the Criminal Law Act 1977, as amended, bomb hoaxes are punishable, on conviction on indictment, by a maximum of seven years' imprisonment, with a maximum of six months' and a fine of £1000 on summary conviction. Section 114 of the Anti-terrorism, Crime and Security Act 2001 makes it an offence, attracting similar penalties, to place or send any substance or thing "with the intention of inducing in a person anywhere in the world a belief that it is likely to be (or contain) a noxious substance or other noxious thing and thereby endanger human life or create a serious risk to human health". Section 85 of the Postal Services Act 2000 makes it an offence to send by post anything which is likely to injure a postal worker or anything which is indecent or obscene. On summary conviction the offence is punishable by a fine, on conviction on indictment by imprisonment for a maximum of 12 months and a fine. By section 1 of the Malicious Communications Act 1988, enacted to give effect to the Law Commission's Report on Poison-Pen Letters (Law Com. No 147, HC 519 (1985)), as amended, it is an offence to send to another person a letter, electronic communication or article of any description which is indecent, grossly offensive, threatening or known or believed to be false. The offence is punishable on summary conviction with a maximum of six months' imprisonment and a fine on scale 5 on the standard scale. There has recently been enacted, in section 127 of the Communications Act 2003, an offence, attracting the same penalties, of improperly using a public electronic communications network. While it cannot be confidently asserted that there is no conduct which might formerly have been properly prosecuted as public nuisance which is not now the subject of express statutory provision, the appellants are in my opinion correct that the most typical and obvious causes of public nuisance are now the subject of express statutory prohibition.

    30.  There is in my opinion considerable force in the appellants' second contention under this head. 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. If the directors in R v Medley 6 C&P 292 who were ignorant of what had been done, or the octogenarian owner in R v Stephens LR 1 QB 702 who was ignorant of what had been done and whose orders were disregarded, were today to be prosecuted for causing a public nuisance rather than under the relevant statutory provision, they would have powerful grounds for objecting, and the same point applies more generally. It cannot in the ordinary way be a reason for resorting to the common law offence that the prosecutor is freed from mandatory time limits or restrictions on penalty. It must rather be assumed that Parliament imposed the restrictions which it did having considered and weighed up what the protection of the public reasonably demanded. I would not go to the length of holding that conduct may never be lawfully prosecuted as a generally-expressed common law crime where it falls within the terms of a specific statutory provision, but good practice and respect for the primacy of statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise.