public nuisance and outraging public decency - Law Commission

does not offend against those principles and standards. We therefore consider
that the offence should be retained.
Reforming the conduct element
4.24 We agree with the House of Lords in Rimmington that it is not desirable either to
limit the definition of public nuisance so as to exclude all instances falling within
other offences or to lay down that, where another offence is applicable,
prosecuting for public nuisance is always an abuse of process. Formal
exclusions to prevent overlap with statutory offences are often problematic, a
case in point being conspiracy to defraud between 1977 and 1987. 32
4.25 In the 1879 draft Criminal Code, 33 and in the criminal code of Canada, 34 there is a
two-step test for public nuisance; while the existence of public nuisance is
defined in much the same way as in England and Wales, it is not made criminal
unless it endangers life, safety or health or causes an injury. The criminal code
of New Zealand reaches a similar result by requiring danger to life, safety or
health as part of the basic definition. 35
4.26 We are not aware of any proposal that the scope of public nuisance in England
and Wales should be limited in the same way, except for Spencer’s suggestion
that public nuisance should be replaced by an offence of doing anything which
creates a major hazard to the physical safety or health of the public. This
definition might prove to be unduly restrictive: there is still room for an offence of
wilful conduct causing a major loss of amenity as distinct from a threat to health
and safety. There is even a case for saying that this is the more important of the
two, as health and safety risks are more comprehensively covered by specialised
legislation.
4.27 We provisionally propose that the offence of public nuisance be retained,
and that its conduct element should remain in its present form as laid down
in Rimmington.
OUTRAGING PUBLIC DECENCY
Abolishing the offence
4.28 Outraging public decency has not been the object of an all-out attack similar to
Spencer’s criticism of public nuisance. Nevertheless it can be considered under
the same heads, namely certainty/human rights/rule of law, overlap with statutory
offences and reform of the conduct element. (Reform of the fault element and
codification are considered in Part 5 and Part 6.)
32 Ayres [1984] AC 447. The result was reversed by Criminal Justice Act 1987 s 12(1).
Between 1984 and 1987, the Inland Revenue was unable to prosecute for conspiracy to
defraud, as the possibility existed of prosecuting for a statutory conspiracy to commit the
near-obsolete common law offence of cheating, applicable only to Revenue cases.
33 Para 2.32.
34 Para 2.64.
35 Para 2.62.
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