public nuisance and outraging public decency - Law Commission

Rule of law
4.8 Lord Bingham devotes a lengthy passage 12 to considering Bentham’s criticism of
retrospective judicial legislation (“dog law”, or “law following the event”), and
observes that:
The domestic law of England and Wales has set its face firmly
against “dog-law”. In R v Withers 13 the House of Lords ruled that the
judges have no power to create new offences: see Lord Reid, at p
854g; Viscount Dilhorne, at p 860e; Lord Simon of Glaisdale, at pp
863d, 867e; Lord Kilbrandon, at p 877c. Nor (per Lord Simon, at p
863d) may the courts nowadays widen existing offences so as to
make punishable conduct of a type hitherto not subject to
punishment.
He further refers to this doctrine as “these common law principles”. 14
4.9 In its original context, Bentham’s criticism was probably meant as an attack on
the existence of common law as such rather than as a caution against excessive
judicial activism in the field of criminal law. Nevertheless neither Lord Bingham
nor Judge LJ whom he cites denied the legitimacy of common law offences as
such. Their point was that the court may not now create new offences: the
caution against judicial law-making is not itself retrospective. Public mischief is
objectionable, not because it is in origin a judge-made offence, but because it is
so vague in outline that every instance of it is an occasion for fresh judicial lawmaking.
4.10 In Lord Bingham’s analysis, Bentham’s “dog law” argument, against retrospective
judicial legislation, cuts both ways. One cannot indefinitely extend a common law
offence to include everything which one dislikes as a matter of policy. But by the
same token one cannot hold that, as the offence is now unnecessary, it should be
treated as never having existed. At most, one can make incremental extensions
or prunings designed to bring the offence nearer to the logical boundaries implicit
in its original nature and purpose.
It may very well be, as suggested by J R Spencer in his article cited in
para 6 above, at p 83, that “There is surely a strong case for
abolishing the crime of public nuisance”. But as the courts have no
power to create new offences (see para 33 below), so they have no
power to abolish existing offences. That is a task for Parliament,
following careful consideration (perhaps undertaken, in the first
instance, by the Law Commission) whether there are aspects of the
public interest which the crime of public nuisance has a continuing
role to protect. It is not in my view open to the House in resolving
these appeals to conclude that the common law crime of causing a
public nuisance no longer exists. 15
12 Rimmington para 33.
13 [1975] AC 842.
14 Rimmington para 34.
15 Rimmington para 31.
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