public nuisance and outraging public decency - Law Commission

(10) If without reasonable excuse a person does anything which he is
prohibited from doing by an anti-social behaviour order, he [is guilty of
an offence and] 117 liable—
(a) on summary conviction, to imprisonment for a term not
exceeding six months or to a fine not exceeding the statutory
maximum, or to both; or
(b) on conviction on indictment, to imprisonment for a term not
exceeding five years or to a fine, or to both.
It has been held that, where the ASBO procedure is available, it is inappropriate
to seek an injunction instead. 118 This point would apply equally to injunctions to
restrain criminal behaviour and injunctions to restrain a public nuisance.
OTHER COUNTRIES
2.61 In the Australian states, nuisance is defined at common law in the same way as
in England and Wales, though some states have codified their criminal law. 119 In
addition, some states (e.g. Queensland) have a statutory “public nuisance
offence”, covering offensive language and behaviour in public. 120 As stated
above, 121 in England and Wales many of these instances would be covered by
specific statutory offences; but the current, as opposed to the older, 122 legislative
practice in England and Wales is to make these offences entirely separate rather
than creating statutory forms of public nuisance.
2.62 New Zealand defines “criminal nuisance” in s 145 of the Crimes Act 1961.
Criminal nuisance
141.—(1) Every one commits criminal nuisance who does any
unlawful act or omits to discharge any legal duty, such act or
omission being one which he knew would endanger the lives, safety,
or health of the public, or the life, safety, or health of any individual.
(2) Every one who commits criminal nuisance is liable to
imprisonment for a term not exceeding 1 year.
2.63 This is narrower than the English offence, in that it requires danger to life, safety
or health as a condition of criminal liability. Mere loss of amenity is not enough.
The mental element is stringent: the statute specifies that the defendant “knew”
117 Words substituted by Police Reform Act 2002 s 61(1) and (8).
118 Birmingham City Council v Shaffi and Ellis [2008] EWCA Civ 1186, [2009] 3 All ER 127.
119 David Barker, Essential Australian Law (2000) p 123. “A public nuisance is a crime,
punishable at common law on indictment. It is also provided for in the Criminal Codes of
Queensland, Western Australia, Tasmania and the Northern Territory.”
120 Summary Offences Act 2005 s 6 (discussed Walsh, “Offensive Language, Offensive
Behaviour and Public Nuisance: Empirical and Theoretical Analyses”, [2005] UQLJ 5).
This must be distinguished from public nuisance as such, as defined in s 230 of the
Queensland Criminal Code: Rimmington para 11.
121 Para 2.59.
122 For which see Spencer, as cited in para 2.10 above.
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