public nuisance and outraging public decency - Law Commission

SPECIFIC IMPACT TESTS
Legal Aid: It is anticipated that the proposals have the potential to generate a
reduction in prosecutions, balanced by a slight increase in civil or administrative
procedures and a small spike in appeals. This would result in a lightening of the
burden of criminal legal aid, with a possible increase in the burden of civil legal aid.
This increase is expected to be minimal or non-existent.
Race equality: Both the proposals and the existing offences appear to be ethnically
neutral. Both offences concern the likely effect of certain activities on the public:
activities with an effect on a special public, such as a local or ethnic community,
are included.
Disability equality: The proposals have a positive impact, as by requiring a more
conscious degree of intention they make it less likely that the offences will be
committed inadvertently by people with cognitive disabilities.
Gender equality: Both the proposals and the existing offences appear to be neutral
on gender as such. We have considered whether the existing offence of outraging
public decency (and therefore any new offence with the same conduct element)
may be discriminatory as to sexual orientation, for example whether activities by
particular groups are more likely to cause public outrage. We believe that this risk
is minimised by the requirement that the act must be such as to cause outrage to a
reasonable person.
Human rights: The proposals have a positive human rights impact, as the offences
will provide clearer guidance on the types of behaviour to be avoided. This meets
the doubts that have been expressed, e.g. by the criminal law textbook Smith and
Hogan, on whether the offence of outraging public decency in particular is certain
enough to meet the requirements of Article 10 of the European Convention on
Human Rights.
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