public nuisance and outraging public decency - Law Commission

Cost/benefit analysis summary
Option 2 or 3 would provide necessary amendment and updating of the law at a
proportionate cost. Of these, option 3 is the more comprehensive long-term
solution.
KEY ASSUMPTIONS/RISKS
Key assumptions
Public nuisance broadly falls into two categories: environmental nuisance,
enforced by local authorities, and behavioural nuisance, enforced by the police and
Crown Prosecution Service. (Cases involving public utilities may be regarded as a
third category, but with the exception of highway cases, which are dealt with by
local authorities, these are uncommon.)
We are informed by local authorities that, in most cases of environmental nuisance,
they prefer to use statutory procedures (e.g. enforcement notices under the
Environmental Protection Act 1990), or else procedures under bye-laws. Further
powers exist in housing cases, such as the condemnation of properties as unfit for
habitation, or the repossession of premises from local authority tenants who have
engaged in nuisance behaviour. We are further informed that prosecution for the
common law offence of public nuisance is reserved for the most flagrant cases of
wilful behaviour. We assume that this is correct and that, in relation to this
category of cases, our proposed reform will simply reflect existing practice and
therefore lead to no increase or reduction in prosecutions.
We are informed by the CPS that it brought 663 prosecutions for public nuisance
between April 2007 and October 2009, representing an average of just over 250
cases a year. Following the case of Rimmington, which decided that series of acts
against individuals, such as hate mail campaigns and obscene phone calls, do not
fall within the offence, this figure is likely to fall, whether or not our proposed reform
takes place. From the list of examples provided to us, it appears that the CPS also
reserves this offence for wilful misbehaviour. The total number of prosecutions for
this offence represents a tiny fraction of the total volume of “nuisance behaviour”,
as defined by the Home Office: there were 7,660 8 cases of “nuisance behaviour”
reported on a day snap shot of crime in the UK. We assume that most of these
cases are dealt with outside the criminal justice system, or by the ASBO procedure.
We further assume that, as ASBOs are only made in response to wilful behaviour,
our proposed reforms will have no knock-on effect in the form of an increase in the
total number of ASBOs.
One category of cases which may be affected by our proposed reform is that of
negligent acts which disrupt public access or services, as mentioned above under
“Scale and context”. As explained, the number of cases involved is minimal. Our
key assumption in this area is that the information provided by the utility companies
in our sample is representative of the practice of the utility companies generally.
8 Home Office Statistics, http://www.homeoffice.gov.uk/rds/pdfs04/dpr26.pdf.
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