public nuisance and outraging public decency - Law Commission

PART 4
CRITICISMS AND PROPOSALS: THE CONDUCT
ELEMENT
PUBLIC NUISANCE
Abolishing the offence
4.1 Arguments for abolishing the offence of public nuisance, as advanced by
Spencer, fall under the following heads.
(1) Vagueness of definition.
(2) Incompatibility with the constitutional requirement of the rule of law.
(3) Problems of compatibility with the European Convention on Human
Rights.
(4) Redundancy, as having been superseded by statutory nuisance and
other modern statutory offences and mechanisms.
Vagueness of definition
4.2 Spencer argues that, historically, the factual element of public nuisance was
extremely fluid and virtually indistinguishable from the now defunct offence of
public mischief, 1 and that both offences could be extended to criminalise anything
the judges disliked. Such freedom of judicial law-making is not acceptable in a
modern democracy. 2
4.3 In Rimmington 3 it was acknowledged that this criticism would have force if the
offence was interpreted so widely as to cover unlocalised and individually
focused mischiefs such as the making of obscene telephone calls or the sending
of hate mail (as in the actual case), whatever the cumulative public effect. A
series of authorities suggesting that these were public nuisances was therefore
overruled. 4 The House of Lords accepted that this wide interpretation of the
offence was tantamount to reviving the offence of public mischief. 5
4.4 However, they clearly did not accept Spencer’s argument 6 that the overall
definition of the offence was so platitudinous as not to be a definition at all, so
that there was no certainty in relation to any branch of the offence. On the
contrary, Lord Bingham observed: 7
1 Held not to exist by the House of Lords in DPP v Withers [1975] AC 842.
2 [1989] CLJ 55 at pp 78-9.
3 [2006] 1 AC 459 (HL).
4 Rimmington, paras 23 to 27, 37, 46 to 48: see paras 2.26 and 2.27 above.
5 Spencer pp 62, 79; Rimmington para 37.
6 At pp 65-66.
7 Rimmington, para 36; see para 2.17 above.
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