public nuisance and outraging public decency - Law Commission

state that recklessness, in this connection, means that the defendant was aware
of the possible results of his or her actions and nevertheless unjustifiably went
ahead. This differs from the Shorrock test by not including cases where the
defendant did not know but ought to have done. The distinction is sometimes
described as being between a “subjective” test (actual knowledge) and an
“objective” one (ought to have known). The judgments in Rimmington did not
address the question of which test would be preferable, but confined themselves
to the points that the objective test was consistent with previous authority and
that the issue in G was limited to the meaning of the word “reckless” where this
was specifically mentioned by statute.
2.40 The facts of Shorrock were that the defendant allowed his field to be used over
the weekend for a party, at which loud music was played. (The facts of the other
case cited, Ruffell, 83 were similar but as this was an appeal against sentence the
point was not argued.) It was held that he had the means of knowing that this
would occur, and that the state of mind required for the offence of public nuisance
was identical to that for the tort of private or public nuisance. The judgment
concluded as follows.
Indeed, given that the common law criminal offence is the causing of
a public nuisance simpliciter, it would, in our judgment, be a
surprising result to find that proof of the facts which would have
entitled the Attorney-General to succeed in a relator action against
the landowner concerned may not be sufficient to found an indictment
for the criminal offence. We conclude that this is not the true position.
Accordingly, in our judgment, the trial judge was correct in his
direction that the appellant was guilty of the offence charged 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, and that
the judge was accordingly right to have rejected the appellant’s
submission to the contrary.
2.41 This test was derived from the earlier case of Sedleigh–Denfield v O’Callaghan 84
in which it was held that there was liability if the owner either knew or should be
taken as knowing of the nuisance and nevertheless did not correct it.
2.42 In brief, the offence of public nuisance is established whenever the tort of public
nuisance exists. A superficial reading of the history of the offence set out in
Rimmington may give the impression of convergence between public nuisance
and other criminal offences, as the test moves from apparently strict liability to
negligence. The later cases do indeed clarify that public nuisance is not an
offence of strict liability, but only because the tort itself contains a negligence test:
the definition of the crime, as to the fault as well as the conduct element, remains
identical to that of the tort.
2.43 The dependence of the offence on the tort is also shown by the existence of
vicarious liability. In Stephens 85 it was held that the owner of a slate quarry was
83 (1991) 13 Cr App R (S) 204.
84 [1940] AC 880.
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