public nuisance and outraging public decency - Law Commission

suitable for a regulatory approach; if so they are likely to be already covered by
regulatory law such as that created by the Environmental Protection Act 1990
and by local authority bye-laws. Both in local authority and in police practice, the
common law offence is generally reserved for the more serious instances of
misbehaviour, with or without an environmental effect.
5.43 Given that public nuisance is so reserved, in practice, we believe that it should
have the same fault elements as imprisonable offences that tend to cover similar
ground, at broadly the same level of gravity.
5.44 We provisionally propose that public nuisance should be found proved
only when D is shown to have acted in the relevant respect intentionally or
recklessly with regard to the creation of a public nuisance. That is, D must
be shown to have intended to create, or realised that he or she might
generate, what ordinary people would regard as a public nuisance.
OUTRAGING PUBLIC DECENCY
5.45 Turning to the crime of outraging public decency, this currently involves a very
significant element of strict liability. So long as D intended the relevant conduct to
take place, it is quite irrelevant not only whether D personally thought the conduct
indecent, but also whether he or she realised that it might be regarded as
indecent by others, or even that it might be seen at all. 50 D is treated as if he or
she intended to outrage public decency or was aware that this might happen
simply because he or she intended to do the act that had this effect (even though
that act is not in itself need not be criminal). This kind of strict liability is arguably
more objectionable than the merely constructive liability found in, say, the offence
of assault occasioning actual bodily harm, discussed above. 51 In the latter case,
D must at least be shown to have had the fault element for, and hence have
committed, a conduct crime – assault – before it becomes appropriate to fix him
or her with (constructive) liability for the consequences – occasioning actual
bodily harm. There is no such ‘threshold’ requirement for criminal activity before
liability is imposed in cases of outraging public decency.
5.46 A conviction for outraging public decency carries considerable stigma. It is also,
of course, an imprisonable offence. Bearing in mind that it will may well share a
good deal in common with the other imprisonable offences that we mentioned
earlier – such as some public order offences, criminal damage, and some
offences against the person – we believe that it should be reformed so that it
shares a similar approach, in terms of fault.
5.47 As with public nuisance we consider that, as the offence carries a considerable
stigma as well as a power of imprisonment, it is unacceptable that it can be
committed inadvertently. This is especially so in those public decency cases
where the defendant had no reason to believe that his or her activities would be
observed at all.
49 Para 2.46.
50 Paras 3.39 to 3.42 above.
51 Para 5.25.
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