public nuisance and outraging public decency - Law Commission

offence. Examples might be where D brings a personal dispute with a local
authority to public attention by spreading a foul-smelling and potentially harmful
liquid on the pavement outside the Town Hall, or where D persistently engages in
hoaxes that lead gullible members of the public unwittingly to engage in
dangerous or demeaning conduct.
5.39 As we said at the outset, we are not challenging the applicability or usefulness of
the crime of nuisance in such cases. However, what we do believe is that it is no
longer appropriate that nuisance retains its negligence-based fault element. That
is an echo of its life as a kind of ‘public tort’, or as an old-fashioned catch-all
substitute for regulatory offences (many of which employ such ‘objective’ fault
elements).
5.40 We are not convinced that there is any need for absolute identity between the
requirements for the tort and the crime of public nuisance because of the identity
of name. The offence of assault, for example, is equally closely associated with
the tort of trespass to the person, but the courts have experienced no difficulty in
holding that criminal assault requires full intention or recklessness while
negligence is sufficient for trespass to the person. 43 Another dual-character
wrong is false imprisonment, where the tort is one of strict liability 44 while the
crime must be “intentional or reckless”. 45
5.41 We have no intention of altering the existence or ingredients of the tort or the
basis on which the Attorney-General and local authorities can apply for an
injunction to stop a nuisance. Nor do we believe that altering, or even abolishing,
the offence would have this effect. 46 The reasoning in cases in which injunctions
are sought always appears to be based on public nuisance as a tort rather than
as a crime. 47 In Zain, 48 it had to be clarified that a local authority had power to
restrain a nuisance although it also amounted to a crime and local authorities
have no general duty of suppressing criminality. In other words, the tort is
fundamental: the availability of criminal proceedings and the availability of
injunctions are two parallel outgrowths from it, neither of which depends on the
other. The requirement of damage peculiar to an individual in tort cases is a
purely pragmatic restraint designed to avoid multiplicity of actions, and affects
only an individual’s right to sue for damages, and not the existence of the tort as
such.
5.42 As explained in Part 2 49 instances of public nuisance can be divided broadly into
environmental and behavioural categories. The environmental cases may be
43 A claim for negligent injury that is direct and forcible can be framed in trespass, though the
limitation provisions are the same as those for negligence: Letang v Cooper [1965] 1 QB
232. See Clerk and Lindsell on Torts para 1.46.
44 R v Governor of Brockhill Prison ex parte Evans [1997] QB 443.
45 Rahman (1985) 81 Cr App R 349, 353.
46 In this we differ from Spencer, p 80, who says that “if the crime of public nuisance were
completely abolished, with it would also go the possibility of obtaining an injunction to stop
one”.
47 Attorney General v PYA Quarries Ltd [1957] 2 QB 169, Nottingham City Council v Zain
[2001] EWCA Civ 1248, [2002] 1 WLR 607.
48 [2001] EWCA Civ 1248, [2002] 1 WLR 607.
65