public nuisance and outraging public decency - Law Commission

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.
4.5 For our part, we accept that the offence, as developed through the cases up to
and including Rimmington, has reached a reasonable degree of certainty.
However, we do not believe that this certainty is derived from, or expressed in,
verbal definitions such as the ones in Stephen and Archbold. Rather, it may be
found in the historical distinction, expressed above, 8 between “core” nuisance
with a clear analogy with private nuisance (the first category) and the
miscellaneous forms of misbehaviour classified with it (the second category).
The actual decision in Rimmington may be paraphrased by saying that, even in
nuisances of the second category, the definitions must be read subject to the
further unexpressed requirement that the link with “core” nuisance (the
“intellectual moorings” 9 ) must not be too remote. It remains the case that
nuisance must be defined piecemeal, as similar to nuisances that have been
found in the past. The European Court of Human Rights has affirmed the
legitimacy of such an exercise, when undertaken by the courts. 10
4.6 It is the second category that largely underlies Spencer’s complaint of
formlessness and extensibility. This category is cut down by Rimmington with the
result that the practical application, if not the intellectual force, of that complaint is
significantly reduced.
4.7 By the same token, however, the offence may have lost some of its
attractiveness to prosecutors, who are said to find it convenient, both to cover
varieties of anti-social behaviour not quite caught by specific statutory offences
and as a stronger offence in instances where the statutory offence has strict time
limits or limited sentencing powers that are not appropriate to the gravity of what
occurred. 11 This convenience would have been still stronger in the broad form of
the offence as it existed before Rimmington; but this breadth is something of a
luxury, and if one were setting out to devise a criminal code it would be difficult,
and probably undesirable in principle, to draft an offence of similar generality.
8 Para 2.11.
9 Rimmington para 37.
10 SW & CR v UK (1995) 21 EHRR 363.
11 According to Spencer, pp 77-78, cited in Rimmington, para 37.
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