public nuisance and outraging public decency - Law Commission

PART 6
RESTATING THE OFFENCES IN STATUTE
PUBLIC NUISANCE
6.1 We consider that the arguments set out above show that there is no clear case
for either abolishing the offence or significantly restricting or altering its conduct
element, but that the fault element should be revised to require at least
recklessness. The question arises whether this should be done by a simple
statutory provision to that effect or whether we should use this opportunity to put
the whole definition of the offence into statutory form.
6.2 We are strongly of the view that defining the offence by statute is desirable in
principle. Restating the offence in statutory form will aid any ultimate codification
of criminal law, an important part of the Law Commission’s long-term aims. 1
Taking such a step would also remove or avoid any doubt about the constitutional
legitimacy or human rights desirability of perpetuating the results of judicial lawmaking.
2 Not to codify the offence now is to leave the same question for a later
project in which full codification is envisaged.
6.3 The argument against codification is that there are technical difficulties in
restating the existing law in statutory form and that any such restatement might
reduce the breadth and flexibility of the offence, which prosecutors find
convenient. One answer to that is that, if the flexibility of the offence were so
great as to make codification technically impossible, that very fact would show
that the existing offence falls foul of the constitutional and human rights
requirements of legal certainty. As argued above, 3 flexibility beyond a certain
point becomes an undesirable luxury.
6.4 The next question is whether to follow the textbook definition of the offence, for
example the form found in Archbold, or to try to find an alternative.
6.5 The argument for using the textbook definition is that it has been accepted by the
House of Lords in Rimmington as an authoritative statement of the law, and that
similar definitions have been used with no adverse consequences in other
Commonwealth countries. 4 While the present project does not form part of a
programme of full codification, the simplicity of the definition makes placing this
particular offence in statutory form an easily achieved aim in a programme of
simplification.
6.6 The argument against using the textbook definition is that it would not increase
the certainty of the offence. The debates in Rimmington would have been little if
at all shorter had a definition in that form already been enacted. Further, the
formula “act not warranted by law or omission to perform a public duty” is
1 Law Commissions Act 1965 s 3(1).
2 Paras 4.8 to 4.10.
3 Para 4.7.
4 Except possibly Canada: see the discussion of Thornton in paras 2.67 and 6.6(1).
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