public nuisance and outraging public decency - Law Commission

whether or not they intended or realised that they might cause actual bodily harm
(the ‘constructive’ element of the offence). 26
5.26 Whether or not an element of constructive liability is justified when it occurs in the
offences mentioned above is not an issue that need concern us here. 27 This is
because we are provisionally proposing that, in both public nuisance and
outraging public decency, D must be proved either to have intended the conduct
and consequence elements to occur, or to have realised that they might occur, as
a result of his or her conduct. Does this formulation avoid any element of strict or
constructive liability? It will do so, if understood in the following way.
5.27 If the fault element (intention or recklessness) is proven, it should not be relevant
that D did not personally believe that his or her conduct should be regarded as a
public nuisance, or as outraging public decency. That would open up an
unjustified gap in the law’s coverage. Adopting this approach might however give
rise to a situation in which, whilst intending the physical acts at issue, D was –
perhaps quite understandably – wholly unaware of possibility that the acts might
in fact be regarded as a public nuisance or as an outrage to public decency. If
liability could established in such a case, it would involve a kind of strict liability,
liability without fault. 28
5.28 Accordingly, our provisional proposal must be understood as subject to the
following rider. A ‘public nuisance’ or an instance of ‘outraging public decency’ is
involved when the conduct in question is what ordinary people would regard as a
public nuisance or as an outrage to public decency. The fault element will be
proven only if D is shown to have intended to cause such a nuisance or outrage,
or to have realised that such a nuisance or outrage – one regarded by ordinary
people as such – might be caused by his or her conduct.
5.29 Given that it will be sufficient to show that D realised that his or her conduct might
cause a nuisance, or might outrage public decency in the eyes of the ordinary
person, our proposal is analogous to the approach taken in law to offences where
a question arises concerning whether or not conduct was ‘dishonest’. The key
issue in cases where dishonesty is an element of the crime is not whether D
personally believed his or her conduct to be dishonest. The key issue is whether
D realised that reasonable and honest people would regard that conduct as
dishonest. 29
5.30 Almost all of the analogous offences mentioned are imprisonable offences. This
is, of course, a feature that they share with both public nuisance and outraging
public decency. Any offence commission of which may be met a sentence of
imprisonment should be regarded as truly criminal in nature, and not a merely
administrative or regulatory transgression.
26 Savage; Parmenter [1992] 1 AC 699.
27 As we saw in Part 2, in some jurisdictions where nuisance has been codified, there is a
similar form of constructive liability. For example, under s 180 of the Canadian Criminal
Code, D will be guilty of common nuisance when, amongst other instances, he or she
“commits a common nuisance” (the conduct element) which, “causes physical injury to any
person” (the consequence element, ‘constructively’ attributed to D irrespective of fault).
28 See the discussion in Smith and Hogan at para 7.1 (pp 150-53).
29 See Ghosh [1982] QB 1053.
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