public nuisance and outraging public decency - Law Commission

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4.43 We provisionally propose that the offence of outraging public decency be retained, and that its conduct element should remain in its present form as laid down in Hamilton. 47 Para 1.4 above. 56
PART 5 CRITICISMS AND PROPOSALS: THE FAULT ELEMENT 5.1 In this Part, we make the case for provisionally proposing that the fault element, both for public nuisance and for outraging public decency, should be intention or recklessness. The prosecution should have to show either (1) that D intended to cause a public nuisance, or to outrage public decency, or (2) if that cannot be shown, that D was reckless as to whether his or her conduct would cause a public nuisance, or outrage public decency. So far as the latter possibility is concerned, what must be shown is that D was aware that his or her conduct might cause a public nuisance, or lead to public decency being outraged, and yet unjustifiably went on to take the risk of that happening. 1 OFFENCES IN GENERAL AND FAULT REQUIREMENTS 5.2 Fault elements attached to criminal offences vary very considerably, both at common law and in statute. It has been argued that this in itself blights the system as a whole, and that greater narrowness of focus and uniformity should be brought to the treatment of fault in English criminal law as a whole. For example, in an earlier edition of their work Smith and Hogan argued (approving of English law as they believed that it stood before the decision in Caldwell 2 ) that: Before Caldwell it could be said that…in crimes requiring mens rea, as distinct from negligence, intention or recklessness as to all the elements of the offence was mens rea or the basic constituent of it. 3 5.3 Even if this was the ‘pre-Caldwell’ position (which, with respect, we doubt), it trades for its plausibility on an ambiguity in the notion of ‘mens rea’. If ‘mens rea’ means ‘mental’ element then Smith and Hogan’s claim has, perhaps, some degree of plausibility; but if ‘mens rea’ means, as we will take it to mean, ‘fault’ element, then Smith and Hogan’s claim cannot be substantiated. It has long been understood that ‘negligence’ is a kind of fault element. 4 Not only can homicide be committed by (gross) negligence, but there is also a negligence basis to liability in rape, even though rape is a very serious crime respecting which great stigma follows conviction. 5 Further, few now argue for subjective recklessness to be re- 1 We mean here to invoke the authoritative understanding of recklessness given in G [2003] UKHL 50, [2004] 1 AC 1034. 2 [1982] AC 341. 3 Smith and Hogan, Criminal Law (7 th ed, 1992) at p 70. 4 For a recent discussion, see AP Simester, ‘Can Negligence be Culpable?’, in Jeremy Horder (ed) Oxford Essays in Jurisprudence, 4 th Series (2000). 5 See now the Sexual Offences Act 2003 s 1. 57
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The Law Commission Consultation Pap
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CODE OF PRACTICE ON CONSULTATION T
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PART 5: CRITICISMS AND PROPOSALS: T
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issues of public policy at stake ma
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(3) improve the clarity of the law
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Page 26 and 27: the Attorney General’s office tha
Page 28 and 29: (fb) artificial light emitted from
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Page 34 and 35: PART 3 OUTRAGING PUBLIC DECENCY: TH
Page 36 and 37: … I think that the objections to
Page 38 and 39: 3.8 Knuller lists further instances
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Page 42 and 43: “which fills the onlooker with lo
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Page 50 and 51: New Zealand 3.46 The Crimes Act 196
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Page 54 and 55: Rule of law 4.8 Lord Bingham devote
Page 56 and 57: 4.15 However, as we have seen, the
Page 58 and 59: does not offend against those princ
Page 60 and 61: Like other offences with an environ
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Page 72 and 73: suitable for a regulatory approach;
Page 74 and 75: importance, the jury can always fin
Page 76 and 77: problematic. 5 There is force in Sp
Page 78 and 79: Sentencing 6.16 As with public nuis
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Page 92 and 93: other procedures are inadequate; an
Page 94 and 95: Cost/benefit analysis summary Optio
Page 96 and 97: SPECIFIC IMPACT TESTS Legal Aid: It
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