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Judgments - Regina v. Rimmington (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) and Regina v. Goldstein (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

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    31.  It follows from the conclusions already expressed in paras 29 to 30 above that the circumstances in which, in future, there can properly be resort to the common law crime of public nuisance will be relatively rare. It may very well be, as suggested by JR Spencer in his article cited in para 6 above, at p 83, that "There is surely a strong case for abolishing the crime of public nuisance". But as the courts have no power to create new offences (see para 33 below), so they have no power to abolish existing offences. That is a task for Parliament, following careful consideration (perhaps undertaken, in the first instance, by the Law Commission) 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.

Definition

    32.  The appellants submitted that the crime of causing a public nuisance, as currently interpreted and applied, lacks the precision and clarity of definition, the certainty and the predictability necessary to meet the requirements of either the common law itself or article 7 of the European Convention. This submission calls for some consideration of principle.

    33.  In his famous polemic Truth versus Ashurst, written in 1792 and published in 1823, Jeremy Bentham made a searing criticism of judge-made criminal law, which he called "dog-law".

    "It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won't tell a man beforehand what it is he should not do - they won't so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it."

The domestic law of England and Wales has set its face firmly against "dog-law". In R v Withers [1975] AC 842 the House of Lords ruled that the judges have no power to create new offences: see Lord Reid at p 854G; Viscount Dilhorne at p 860E; Lord Simon of Glaisdale at pp 863D, 867E; Lord Kilbrandon at p 877C. Nor (per Lord Simon at p 863D) may the courts nowadays widen existing offences so as to make punishable conduct of a type hitherto not subject to punishment. The relevant principles are admirably summarised by Judge LJ for the Court of Appeal (Criminal Division) in R v Misra and Srivastava [2004] EWCA Crim 2375, [2005] 1 Cr App R 328, paras 29-34, in a passage which I would respectfully adopt:

    "29  To develop his argument on uncertainty, Mr Gledhill [for Dr Misra] focussed our attention on art 7 of the Convention, entitled 'No punishment without law' which provides:

      '7(1) No-one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.'

    In our view the essential thrust of this article is to prohibit the creation of offences, whether by legislation or the incremental development of the common law, which have retrospective application. It reflects a well-understood principle of domestic law, that conduct which did not contravene the criminal law at the time when it took place should not retrospectively be stigmatised as criminal, or expose the perpetrator to punishment. As Lord Reid explained in Waddington v Miah (1974) 59 Cr App R 149 at pp 151 and 152,

      'There has for a very long time been a strong feeling against making legislation, and particularly criminal legislation, retrospective … I use retrospective in the sense of authorising people being punished for what they did before the Act came into force.'

    30  Mr Gledhill demonstrated that the Convention contained repeated references to expressions in English such as 'prescribed by law': in French, the same phrase reads 'prévue par la loi'. We shall assume that the concepts are identical. Article 7 therefore sustains his contention that a criminal offence must be clearly defined in law, and represents the operation of 'the principle of legal certainty' (see, for example, Brumarescu v Romania (2001) 33 EHRR 35 at para 61 and Kokkinakis v Greece (1993) 17 EHRR 397 at para 52). The principle enables each community to regulate itself:

      'with reference to the norms prevailing in the society in which they live. That generally entails that the law must be adequately accessible—an individual must have an indication of the legal rules applicable in a given case—and he must be able to foresee the consequences of his actions, in particular to be able to avoid incurring the sanction of the criminal law.' (S.W. v United Kingdom: C.R. v United Kingdom (1995) 21 EHRR 363).

    31 Mr Gledhill further emphasised that in Grayned v City of Rockford 408 US 104 (1972) the United States Supreme Court identified 'a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vagueness offends several important values … A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.' He pointed out that Lord Phillips MR had approved these dicta in R (L and another) v Secretary of State for the Home Department [2003] EWCA Civ 25 [2003] 1 WLR 1230, para 25.

    32  We acknowledge the force of these submissions, but simultaneously emphasise that there is nothing novel about them in our jurisprudence. Historic as well as modern examples abound. In the 17th century Bacon proclaimed the essential link between justice and legal certainty:

      'For if the trumpet give an uncertain sound, who shall prepare himself to the battle? So if the law give an uncertain sound, who shall prepare to obey it? It ought therefore to warn before it strikes … Let there be no authority to shed blood; nor let sentence be pronounced in any court upon cases, except according to a known and certain law … Nor should a man be deprived of his life, who did not first know that he was risking it.' (Quoted in Coquillette, Francis Bacon pp 244 and 248, from Aphorism 8 and Aphorism 39A Treatise on Universal Justice).

      The judgment of the Supreme Court of the United States in Grayned effectively mirrored Blackstone:

      '… Law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law: which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.' (Commentaries, 3rd ed, 1769, vol 1 p 62)

    33  Recent judicial observations are to the same effect. Lord Diplock commented in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] 591 at p 638:

      'The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it.'

    In Fothergill v Monarch Airlines Ltd [1981] AC 251 at 279 he repeated the same point:

      'Elementary justice or, to use the concept often cited by the European court, the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him (or more realistically by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible.'

    More tersely, in Warner v Metropolitan Police Commissioner (1968) 52 Cr App R 373, 414 [1969] 2 AC 256, 296, Lord Morris of Borth-y-Gest explained in terms that:

      '… In criminal matters it is important to have clarity and certainty.'

    The approach of the common law is perhaps best encapsulated in the statement relating to judicial precedent issued by Lord Gardiner LC on behalf of himself and the Lords of Appeal in Ordinary on July 26, 1966 Practice Statement (Judicial Precedent) (1986) 83 Cr App R 191, [1966] 1 WLR 1234.

      'Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.'

    In allowing themselves (but not courts at any other level) to depart from the absolute obligation to follow earlier decisions of the House of Lords, their Lordships expressly bore in mind:

      '… the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.'

    34 No further citation is required. In summary, it is not to be supposed that prior to the implementation of the Human Rights Act 1998, either this Court, or the House of Lords, would have been indifferent to or unaware of the need for the criminal law in particular to be predictable and certain. Vague laws which purport to create criminal liability are undesirable, and in extreme cases, where it occurs, their very vagueness may make it impossible to identify the conduct which is prohibited by a criminal sanction. If the court is forced to guess at the ingredients of a purported crime any conviction for it would be unsafe. That said, however, the requirement is for sufficient rather than absolute certainty."

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": R v Clark (Mark) [2003] EWCA Crim 991, [2003] 2 Cr App R 363, para 13.

    34.  These common law principles are entirely consistent with article 7(1) of the European Convention, which provides:

    "No punishment without law

    (1)  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."

The European Court has repeatedly considered the effect of this article, as also the reference in article 8(2) to "in accordance with the law" and that in article 10(2) to "prescribed by law".

    35.  The effect of the Strasbourg jurisprudence on this topic has been clear and consistent. The starting point is the old rule nullum crimen, nulla poena sine lege (Kokkinakis v Greece (1993) 17 EHRR 397, para 52; SW and CR v United Kingdom (1995) 21 EHRR 363, para 35/33): only the law can define a crime and prescribe a penalty. An offence must be clearly defined in law (SW and CR v United Kingdom), and 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 (Sunday Times v United Kingdom (1979) 2 EHRR 245, para 49; G v Federal Republic of Germany (1989) 60 DR 256, 261, para 1; SW and CR v United Kingdom, para 34/32). It is accepted that absolute certainty is unattainable, and might entail excessive rigidity since the law must be able to keep pace with changing circumstances, some degree of vagueness is inevitable and development of the law is a recognised feature of common law courts (Sunday Times v United Kingdom, para 49; X Ltd and Y v United Kingdom (1982) 28 DR 77, 81, para 9; SW and CR v United Kingdom, para 36/34). But the law-making function of the courts must remain within reasonable limits (X Ltd and Y v United Kingdom, para 9). Article 7 precludes the punishment of acts not previously punishable, and existing offences may not be extended to cover facts which did not previously constitute a criminal offence (ibid.). The law may be clarified and adapted to new circumstances which can reasonably be brought under the original concept of the offence (X Ltd and Y v United Kingdom, para 9; G v Federal Republic of Germany, pp 261-262). But any development must be consistent with the essence of the offence and be reasonably foreseeable (SW and CR v United Kingdom, para 36/34), and the criminal law must not be extensively construed to the detriment of an accused, for instance by analogy (Kokkinakis v Greece, para 52).

    36.  How, then, does the crime of causing a public nuisance, as currently interpreted and applied, measure up to these standards? Mr Perry, for the Crown, pointed out, quite correctly, that offences such as blasphemous libel (X Ltd and Y v United Kingdom), outraging public decency (S and G v United Kingdom (Application No 17634/91, 2 September 1991) and blasphemy (Wingrove v United Kingdom (1996) 24 EHRR 1) had withstood scrutiny at Strasbourg. Only in Hashman and Harrup v United Kingdom (1999) 30 EHRR 241 had a finding that the applicants had acted contra bonos mores been held to lack the quality of being "prescribed by law". It was suggested, as put by Emmerson and Ashworth, Human Rights and Criminal Justice (2001), para 10-23, that

    "the standard of certainty required under the Convention, and under comparable constitutional principles, is not a particularly exacting one."

I would for my part accept that the offence as defined by Stephen, as defined in Archbold (save for the reference to morals), as enacted in the Commonwealth codes quoted above and as applied in the cases (other than R v Soul 70 Cr App R 295) referred to in paras 13 to 22 above is clear, precise, adequately defined and based on a discernible rational principle. A legal adviser asked to give his opinion in advance would ascertain whether the act or omission contemplated was likely to inflict significant injury on a substantial section of the public exercising their ordinary rights as such: if so, an obvious risk of causing a public nuisance would be apparent; if not, not.

    37.  I cannot, however, accept that R v Norbury [1978] Crim LR 435 and R v Johnson (Anthony) [1997] 1 WLR 367 were correctly decided or that the convictions discussed in paras 23 to 27 above were soundly based (which is not, of course, to say that the defendants' conduct was other than highly reprehensible or that there were not other charges to which the defendants would have had no answer). To permit a conviction of causing a public nuisance to rest on an injury caused to separate individuals rather than on an injury suffered by the community or a significant section of it as a whole was to contradict the rationale of the offence and pervert its nature, in Convention terms to change the essential constituent elements of the offence to the detriment of the accused. The offence was cut adrift from its intellectual moorings. It is in my judgment very significant that when, in 1985, the Law Commission addressed the problem of poison-pen letters, and recommended the creation of a new offence, it did not conceive that the existing offence of public nuisance might be applicable. It is hard to resist the conclusion that the courts have, in effect, re-invented public mischief under another name. It is also hard to resist the conclusion expressed by Spencer at p 77 of his article cited above [1989] CLJ 55:

    "… almost all the prosecutions for public nuisance in recent years seem to have taken place in one of two situations: first, where the defendant's behaviour amounted to a statutory offence, typically punishable with a small penalty, and the prosecutor wanted a bigger or extra stick to beat him with, and secondly, where the defendant's behaviour was not obviously criminal at all and the prosecutor could think of nothing else to charge him with."

As interpreted and applied in the cases referred to in paras 23 to 27 above, the offence of public nuisance lacked the clarity and precision which both the law and the Convention require, as correctly suggested by the commentators in [1978] Crim LR 435, 436 and [1980] Crim LR 234, Spencer, op. cit., pp 55, 77-79, and Professor Ashworth in his commentary on the present cases at [2004] Crim LR 303, 304-306. See also McMahon and Binchy, Law of Torts, 3rd ed (2000), p 676 f.n. 6.

Mr Rimmington's appeal

    38.  It seems to me clear that the facts alleged against Mr Rimmington, assuming them to be true, did not cause common injury to a section of the public and so lacked the essential ingredient of common nuisance, whatever other offence they may have constituted. The Crown contended that, if persistent and vexatious telephone calls were a public nuisance, it was a small and foreseeable step to embrace persistent and vexatious postal communications within that crime also. I would agree that if the telephone calls were properly covered it would be a small and foreseeable development, involving no change in the essential constituent elements of the offence, to embrace postal communications also. But, for reasons already given, the crime of public nuisance does not extend to separate and individual telephone calls, however persistent and vexatious, and the extension of the crime to cover postal communications would be a further illegitimate extension. The judge and the Court of Appeal, bound by R v Johnson [1997] 1 WLR 367, reached a different conclusion. I am of opinion that for all the reasons given above, and those given by my noble and learned friends, this appeal must be allowed.

Mr Goldstein's appeal

    39.  The argument in this appeal was very largely directed to the issue of mens rea: what state of mind must be proved against a defendant to convict him of causing a public nuisance? The Crown contended that the correct test was that laid down by the Court of Appeal in R v Shorrock [1994] QB 279, 289, that the defendant is responsible for a nuisance which he knew, or ought to have known (because the means of knowledge were available to him), would be the consequence of what he did or omitted to do. That was a test clearly satisfied on the facts of that case, where the defendant deliberately permitted use of his field and should have known what the result would be. It is a test satisfied, I think, in all the public nuisance authorities considered above, save those based on vicarious liability (which are hard to reconcile with the modern approach to that subject in cases potentially involving the severest penalties, and may well be explained, as Mellor J did in R v Stephens (1866) LR 1 QB 702, 708-709, by the civil colour of the proceedings). I would accept this as the correct test, but it is a test to be applied to the correct facts.

    40.  Mr Goldstein deliberately posted an envelope containing a small quantity of salt. He intended it to reach the addressee, Mr Ehrlich. Had it done so there would have been no public nuisance, as the trial judge correctly directed the jury. The public nuisance alleged was the escape of the salt from the envelope, which led to the evacuation of the sorting office by 110 workers for an hour and the cancelling of a second post. I am willing to assume (without deciding) that those events could be a sufficiently substantial injury to a significant section of the public to amount to a public nuisance. But the escape of the salt was not a result which Mr Goldstein intended. Nor, plainly was it a result which he knew would occur, since it would have rendered his intended joke entirely futile. It would seem far-fetched to conclude that he should reasonably have known that the salt would escape, at any rate without detailed consideration of the type of envelope used and the care taken in sealing it. He himself said that he had no idea the salt would leak out (see the Court of Appeal judgment, para 38). But neither at trial nor on appeal was this question squarely addressed. The emphasis was on a foreseeable consequence if there were an escape and not on the foreseeability of an unintended escape. In the event, I conclude that it was not proved against Mr Goldstein that he knew or reasonably should have known (because the means of knowledge were available to him) that the salt would escape in the sorting office or in the course of post. For these reasons, and those given by my noble and learned friends, his appeal must be allowed and his conviction quashed.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    41.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I respectfully agree with his exposition of the common law offence of public nuisance, its boundaries, and the place this offence now occupies in the criminal law. For the reasons he gives I too would allow both appeals.

    42.  I add just one footnote, concerning hoax messages. Whether a hoax message is capable of constituting the offence of causing a public nuisance depends primarily upon the content of the hoax. In the ordinary course a hoax message which, as intended, inconvenienced only the recipient would lack the necessary public element. Very different would be a hoax message of the existence of a public danger, such as a hoax telephone call that an explosive device has been placed in a railway station. A hoax message of this character is capable of constituting the offence even though made to one person alone. This is because the message, to whomsoever addressed, was expected and intended to be passed via the police to users and potential users of the railway station. In other words, the message was the means whereby the caller intended to cause public alarm and disruption.

LORD RODGER OF EARLSFERRY

My Lords,

    43.  I have had the privilege of considering the speech of my noble and learned friend, Lord Bingham of Cornhill, in draft. I agree with it but add some observations in view of the difficulty and importance of the issues involved.

    44.  The law of nuisance and of public nuisance can be traced back for centuries, but the answers to the questions confronting the House are not to be found in the details of that history. What may, perhaps, be worth noticing is that in 2 Institutes 406 Coke adopts a threefold classification of nuisance: public or general, common, private or special. Common nuisances are public nuisances which, for some reason, are not prosecutable. See D Ibbetson, A Historical Introduction to the Law of Obligations, 106 nn 62 and 65. So for Coke, while all public nuisances are common, not all common nuisances are public. Later writers tend to elide the distinction between common and public nuisances but, throughout, it has remained an essential characteristic of a public nuisance that it affects the community, members of the public as a whole, rather than merely individuals. For that reason, the appropriate remedy is prosecution in the public interest or, in more recent times, a relator action brought by the Attorney General. A private individual can sue only if he can show that the public nuisance has caused him special injury over and above that suffered by the public in general. These procedural specialties derive from the effect of the public nuisance on the community, rather than the other way round. I therefore doubt whether, in a criminal context at least, it is of much help to follow Denning LJ in the civil case of Attorney General v PYA Quarries Ltd [1957] 2 QB 169, 191 and to seek to identify a public nuisance by asking whether the nuisance 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.

    45.  As Lord Bingham has shown, there have been many attempts to define the scope of public nuisance. The concept was applied to a number of disparate situations at a time when there was no perceived need to define its boundaries very precisely. In consequence, it has been aptly described as "a ragbag of odds and ends": J R Spencer, "Public Nuisance - a Critical Assessment" [1989] CLJ 55, 59. In his Digest of the Criminal Law even the highly rational Sir James Fitzjames Stephen could do little more than reflect this reality. Mr Guthrie QC used this lack of coherence in the definition of the offence as a basis for submitting that its contours were so uncertain as to make it incompatible with article 7 of the European Convention on Human Rights. While a lack of coherence in defining the scope of an offence may offend modern eyes, it does not follow that there is any violation of article 7. If the individual elements of the crime are identified clearly enough and the law is applied according to its terms, potential offenders and their advisers know where they stand: they cannot complain because the law could perhaps have been formulated more elegantly. For present purposes I would be content to adopt the definition in Archbold, Criminal Pleading, Evidence and Practice 2005, para 31-40, under deletion of the reference to morals:

    "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."

    46.  Mr Rimmington seems to have embarked upon his vile campaign of letter writing in 1992. At all events, the first entry in the schedule relates to a letter received on 1 June 1992. If - most improbably - after sending a number of letters Mr Rimmington had paused to consider whether he was committing the offence of public nuisance, then he would surely have found enough in the books to put him on his guard. While there was apparently no case where the writer of obscene or objectionable letters had been prosecuted for public nuisance, there were several cases, starting with R v Norbury [1978] Crim LR 435, where it had been held or accepted that the making of a large number of obscene or objectionable telephone calls to individuals could constitute public nuisance. It would have been only prudent for Mr Rimmington to assume that the general reasoning behind those decisions would be applicable to the sending of a large number of obscene or objectionable letters. In that situation, superficially at least, the law was sufficiently certain to meet the requirements of article 7 for Mr Rimmington's purposes.

 
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