public nuisance and outraging public decency - Law Commission

problematic. 5 There is force in Spencer’s argument that this formula is suitable
only as a generic description of a category of offences, or even of a power of
creating offences, and not of an actual offence. 6 It is not clear whether the law
and duty in question refer to identifiable legal duties that do not themselves
depend on the law of nuisance, and the definition could be circular. Were the
Archbold definition enacted in statutory form, one of two things would happen.
(1) The whole definition could be taken seriously, and every case would
require detailed investigation of whether the act was truly unlawful or
what duty had been omitted, as in the Canadian case of Thornton. 7 This
would complicate the law rather than simplifying it.
(2) Alternatively, the first part of the definition could be taken as a rhetorical
generality, serving only as a hook for the requirement of public injury and
an acknowledgment of a defence of specific statutory justification. This
would in effect leave the question of whether a nuisance exists to be
resolved as it was at common law, and codification would perform no
function (but also do no harm).
6.7 We consider on balance that it would be preferable to explore alternative
definitions. The purpose of any such definition would be to preserve the
requirement of common injury while keeping the scope of the act or omission
causing that injury as wide as possible.
Provisional proposal
6.8 We provisionally propose:
(1) to restate the offence in statutory form, while altering the fault
element as proposed above; 8
(2) for this purpose, to explore definitions alternative to that given in
Archbold.
6.9 Consultees are asked for their views on how the offence of public nuisance
should best be defined by statute to give effect to the above proposal.
Sentencing
6.10 If the offence of public nuisance is restated in statutory form, it may be desirable
to consider at the same time whether to alter the sentencing powers, for example
by providing for a fixed maximum sentence. This is a matter to be considered by
the Government department sponsoring any legislation resulting from our
proposals.
6.11 We envisage that the offence of public nuisance, with the strengthened fault
element as proposed, will be used mainly for instances of wilful and serious
5 Para 2.9 above.
6 Para 2.10 above.
7 Para 2.67 above.
8 At para 5.44.
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