public nuisance and outraging public decency - Law Commission

the severest penalties, and may well be explained, as Mellor J did …, by the civil
colour of the proceedings”. 89
CURRENT PRACTICE
2.46 Today public nuisance may still conveniently be divided into two categories,
though the classification is different from the historical one given above. 90 The
first is “environmental” nuisance, such as harmful substances and smells and
obstructing the highway. The second is “behavioural” nuisance, covering
offensive behaviour in public. This class is narrowed but not abolished by
Rimmington: the test is that the offending behaviour affects several people at
once and is not a mere series of acts that annoy individuals. There is some
overlap between the two categories: for example drug dealing and the holding of
noisy parties in public both affect the amenities of an area and are offensive in
themselves.
2.47 Environmental nuisances are largely dealt with by local authorities, though
usually through statutory powers and offences 91 rather than as public nuisance at
common law. Most of these powers involve the use of either licensing schemes
or enforcement notices. On consulting a sample of local authorities, we are
informed that the normal strategy is to discuss the problem with the person
responsible for a nuisance before issuing an enforcement notice: only a small
proportion of cases result in prosecution for breach of the notice, and a still
smaller proportion in prosecution for common law nuisance.
2.48 This is in keeping with the approach of local authorities in landlord cases and
consumer product safety cases, variously known as the “compliance” strategy, as
“responsive regulation” and as “smart regulation”. 92 Under these strategies, local
authorities apply a pyramid of measures ranging from purely voluntary and
informal approaches through regulatory notices to prosecution as a last resort. 93
These are applied with discretion, as part of a compliance strategy, and having
regard to the degree of risk and the level of fault. A local authority’s
responsibilities for public nuisance extend beyond the field of environmental
regulation: for example, under the Licensing Act 2003 a licensing authority must
carry out its functions with a view to the prevention of public nuisance. 94
2.49 Apart from prosecutions, the other means of enforcement is by proceedings for
an injunction, brought either by a person particularly affected or by the Attorney
General. Proceedings by the Attorney General generally take (or took) the form
of relator actions, in which the Attorney General lends his or her name to
proceedings on behalf of a local authority or a person affected. The relator
procedure remains in existence, but is seldom if ever used: we are informed by
89 Rimmington, para 39.
90 Para 2.11.
91 These are set out in more detail in para 2.53 and following.
92
For the differences between these, see Part 5 of our CP on “Encouraging Responsible
Letting”, Law Com CP No 181.
93 Cartwright, “Enforcement, risk and discretion: the case of dangerous consumer products”,
(2006) 26 Legal Studies 524; Cowan and Marsh, “There’s Regulatory Crime, and then
there’s Landlord Crime: from ‘Rachmanites’ to ‘Partners’”, (2001) 64 MLR 831.
94 Licensing Act 2003 s 4(2)(c).
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