public nuisance and outraging public decency - Law Commission

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.
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