public nuisance and outraging public decency - Law Commission

this is uncommon: one water authority informs us that it has never brought such a
prosecution. The decision to prosecute Mr Goldstein was atypical, and is likely to
have been influenced by the heightened public tension on the subject of anthrax
attacks. Like the local authorities, public utilities generally prefer to use specialised
offences: examples are interfering with the mail 5 (though this offence would not
have applied to the particular facts of Goldstein) and with the sewerage 6 and
water 7 networks. These offences, like public nuisance, are generally triable either
in the Crown Court or in a magistrates’ court: straightforward cases are dealt with
in the magistrates’ courts, the costs typically being between £1,000 and £2,000
according to the figures provided by one water authority, and generally being
recoverable from the defence. In other instances, the utility companies bring civil
actions, for example for negligence, nuisance or trespass.
Outraging public decency
According to the CPS, there are currently some 300-400 prosecutions for this
offence each year. Many of these concern cases of indecent exposure: outraging
public decency is used in preference to the statutory offence of exposure because
the latter requires intention to alarm or distress.
POLICY OPTIONS
The following four policy options have been identified:
Option 1: Do nothing
The first option is to leave the current law as it stands. This would mean that the
problems identified in the current law, outlined above under the heading ‘Problems
under Consideration’, would remain.
Option 2: Alter the existing offences by statute
The second option would be to enact a statute providing that, to be guilty of either
public nuisance or outraging public decency, the defendant must either have
intended the adverse effects of his or her conduct, or been aware of the risk of
those effects and nevertheless decided, without reasonable justification, to engage
in that conduct.
Option 3: Abolish the existing offences and create new statutory offences
Policy option 3 would involve replacing the existing common law offences with two
new statutory offences of public nuisance and outraging public decency. The aim
would be to make the scope of the two offences the same as in option 2.
Regarding public nuisance, in the CP we present the argument that the codification
of any common law offence is desirable in principle, and that public nuisance
should not be an exception. We advise against using the conventional definition,
5 Postal Services Act 2000 s 84.
6 Water Industry Act 1991 ss 111,121.
7 Water Industry Act 1991 s 174.
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