public nuisance and outraging public decency - Law Commission

offences comparable to public nuisance, are set out at the end of the section on
“Key assumptions” below.
As concerns outraging decency, there will be some reduction in prosecutions for
this offence, as prosecutions will not be brought (or if brought, will not succeed) in
cases of inadvertent or purely negligent acts. It is unlikely that other proceedings
will be brought in their place, as most of the alternative offences, e.g. exposure,
also require intention. As with public nuisance, this should effect a saving in costs.
In the case of artistic displays, for example, our proposals will mean that
prosecution will not succeed if there was no intention to cause offence or
recklessness about the prospect of causing offence. By discouraging proceedings
these cases, the new test should also lessen public perception that the law is
enforcing outdated moral standards.
As a result of option 2 the law will be fairer and the criterion for criminal liability
more appropriate. By targeting only wilful or reckless behaviour, the scope of the
offences will be in keeping with their perceived gravity.
Option 3: Abolish the existing offences and create new statutory offences
Costs
The costs of option 3 would include all those mentioned under option 2, as both
are ways of achieving what is basically the same reform in the law.
Since option 3 involves the complete restatement of the definitions of the offences
there is some risk that for a short period following implementation there will be
increased legal argument, longer trials and more appeals as a result of this
proposal while the boundaries of the new offences are tested. The cost to HM
Court Service of a day’s hearing at the Crown Court is estimated at £5,690 and the
cost of a day’s hearing at the Court of Appeal is estimated at £14,415 (figures from
2007/8), with the parties’ costs to be added on top in both cases. However, by
careful drafting it should be possible to reduce this risk to a minimum.
Benefits
The benefit of reform under option 3 would include that of option 2, namely that the
offences will be confined to wilful or reckless behaviour.
Codification of common law offences is always desirable in principle, as it
demonstrates compliance with the human rights requirement of certainty and
legality. It should also lead to reduced legal argument, shorter trials and fewer
appeals in the medium to long term, as a fixed statutory definition will mean that
there is less room to dispute either the legitimacy or the scope of the offence. A
further benefit of codifying these offences now is that, should comprehensive
codification of the criminal law be undertaken at a later stage, the work of codifying
these two offences will already have been done and some time and effort will be
saved at that later stage.
87