public nuisance and outraging public decency - Law Commission

instated as the fault element in what is now the offence of ‘dangerous driving’,
even though conviction for that crime too carries considerable stigma. 6
5.4 Having said that, there is a still a strong case for saying that the same or very
similar fault requirements should be employed where two or more of the following
criteria are met:
The offences are of a broadly similar nature;
The offences are at about the same level of gravity; and
The offences may in many instances interchangeably be charged on
the same facts.
5.5 This is in a way a very simple and easily met demand. If met, it means, so far as
the fault element is concerned, that differences of definition where there need be
none have been avoided, making the law easier to understand for all concerned.
It also makes choice of charge a more straightforward matter for the prosecution,
by enabling a concentration of focus on how well the facts fit the conduct element
of a given crime, in determining whether there is a reasonable prospect of
conviction.
5.6 This is where Smith and Hogan’s focus on intention or recklessness, as key fault
terms in criminal law, can still have an important bearing. There are a number of
offences broadly comparable to public nuisance and outraging public decency in
point of gravity. For these offences, the fault element is either intention or
recklessness (or malice or awareness) as to the occurrence of the conduct
elements (even if fault is not required respecting all the elements 7 ), as
recommended by Smith and Hogan in 1992. 8
5.7 In that regard, the definition of intention is now settled by the case of Woollin. 9 In
law, intention involves a desire to bring something about, a desire which may be
inferred from proof that the person in question foresaw that the event in question
was virtually certain to come about if they acted in a certain way (which they went
on to do).
5.8 Recklessness, in law, now follows the meaning set out in the Draft Criminal
Code:
A person acts recklessly ... with respect to —
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
6 Even if the concept of ‘dangerous’ driving is, for some, less acceptable than a standard
that can take greater account of blameworthiness, such as ‘negligent’ driving. For a
comprehensive review of driving offences involving the causing of death, see Sally
Cunningham, ‘Punishing Drivers who Kill: Putting Road Safety First’? (2007) 27 Legal
Studies 288.
7 See paras 5.24 and following, below.
8 Above, n 3.
9 [1999] 1 AC 82 (HL).
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