public nuisance and outraging public decency - Law Commission

and Hogan appears to suggest. The facts of Rimmington, like those of the cases
which it overrules, are excluded from the offence not because they involved a
single act but because they involved a continuing series of acts each of which
only affected one individual. We return to this point below. 39
2.16 Public nuisance can also be perpetrated by omission. An example is allowing a
house to fall into ruin 40 or allowing one’s land to be used as a rubbish tip. 41 Again
the omission must have a sufficiently deleterious effect on the public, but there
does not appear to be a requirement that the omission must constitute a legal
wrong separate from nuisance (except that, if the effect is reasonably
foreseeable, the omission arguably amounts to the tort of negligence).
2.17 Rimmington does not specifically discuss the first part of the definitions,
concerning acts not warranted by law and omission to discharge a legal duty.
However, after discussing the requirements of certainty in criminal offences, 42
Lord Bingham goes on to say: 43
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
… 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.
In this, he implicitly adopts the definitions. Lord Rodger does the same. 44
2.18 The gist of the above passage in Rimmington, and of the passage about the
“requirement of common injury”, 45 is that it is on that requirement, as embodied in
the second half of the definition, that public nuisance turns. The implication is
that the first half of the definition is not a significant limitation and that if there is a
doubt about its meaning it should be interpreted in the widest sense. That is, any
act which brings about the relevant common injury is unlawful unless there is
specific legal authority for it, and any omission to do what one is reasonably
expected to do to prevent the relevant common injury is a breach of a legal duty
of care. This is borne out by cases such as PYA Quarries: quarrying and blasting
are not, in themselves and apart from the common injury caused, unlawful acts.
39 Paras 2.25 to 2.28.
40 Watts (1703) 1 Salk 357, 91 ER 311.
41 A-G v Tod Heatley [1897] 1 Ch 560.
42 Para 4.8 below and following.
43 Rimmington, para 36.
44 Rimmington, para 45.
45 Rimmington, para 10.
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