public nuisance and outraging public decency - Law Commission

2.3 The legal effect of a public nuisance is threefold.
(1) If someone is affected to an exceptional degree, distinguishable from the
effect on the general or local public, the person affected can sue in tort.
(2) If the person responsible knew, or ought to have known, of the bad
effects on the public, he or she is guilty of a criminal offence.
(3) The Attorney General, the local authority or the person affected may
bring proceedings for an injunction.
2.4 We argue below 12 that the tort is the fundamental part of public nuisance, and
that both the offence and the injunction procedure are outgrowths of it. 13 Be that
as it may, the majority of cases defining what a public nuisance is are tort cases,
but these definitions are equally applicable to the offence. 14
2.5 The offence has been extensively criticised in an article by J R Spencer. 15 His
first argument is that the offence is so wide and the definition is so fluid that it
lacks the certainty required of a criminal offence. His second argument is that
almost all examples of public nuisance are now covered by specialised statutory
offences. He concludes that the offence should be abolished, either without
replacement or in favour of a narrower offence of doing anything which creates a
major hazard to the physical safety or health of the public. 16
2.6 Since then, the offence of public nuisance has been restated and reconsidered
by the House of Lords in R v Rimmington and Goldstein. 17 These were two
appeals raising separate issues.
(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
11 The significance of this last example is not that the dealers are prosecuted for public
nuisance (there are more appropriate offences) but that injunctions can be granted:
Nottingham City Council v Zain [2001] EWCA Civ 1248, [2002] 1 WLR 607.
12 Para 5.41.
13 Simester and Sullivan, Criminal Law: Theory and Doctrine (2 nd edition) pp 243-4 points out
that some features of the tort, such as vicarious liability, also apply to the crime and that in
some respects the offence has more affinity with the law of tort than the law of crime.
14 Blackstone’s Commentaries iv 167, in defining the offence of public nuisance, refers back
to the discussion of the tort before going on to give further examples. Rimmington,
discussed below, refers to PYA Quarries, which was a civil case, as “the leading modern
authority on public nuisance”: para 18.
15 “Public Nuisance — a critical examination” [1989] CLJ 55 (hereinafter “Spencer”).
16 Spencer, pp 83-84.
17 [2006] 1 AC 459 (HL).
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