ISSUE 5 2008 - Sweet & Maxwell

Crim. L.R. Public Nuisance Injunctions Against On-Street 361
statute—almost everything that endangered public health and safety had become
punishable as a specific statutory offence. Logically then, Spencer argued that the
PNI should have been rendered obsolete, and that over the last 100 years the law
had been, to a certain extent. Yet, he observed that almost all the prosecutions for
public nuisance during the mid decades of the 20th century had been either where
the defendant’s behaviour amounted to a statutory offence typically punishable
with a small penalty and where the prosecutor had wanted:
‘‘. ..a bigger or extra stick to beat him with or where the behaviour is not so
obviously criminal at all and the prosecutor [could] not think of anything else
to charge him with.’’ 60
Spencer’s assertions certainly have some value in the context of the use of PNIs
against sex workers; it is well known that the offences of loitering and soliciting
are punishable by fine only under the Street Offences Act 1959 61 and thus the
legislation offers little deterrent value. However, as Ashworth questioned in his
commentary on Goldstein in the Court of Appeal, 62 the law on public nuisance may
be a ‘‘useful stop gap’’ for prosecuting behaviour that is annoying to the public
and which results in a low maximum penalty, but is this course of action right
Should the law contain this ‘‘catch all’’ offence And, given that the offence is so
broad and vague, is it not appropriate and right that the court should be bound
by the statutory maximum for the offence committed rather than handing out
discretionary penalties in this way 63 Particularly, as Ashworth goes on to point
out, that in 1976 the Law Commission argued for greater certainty of the definition
and made the point that:
‘‘. ..if new forms of wickedness should arise, the approach most consistent
with the rule of law is for Parliament to create new offences ...’’ 64
The House of Lords has recently shed light on some of the issues raised by
Ashworth. In Rimmington and Goldstein 65 the House considered the essential
elements of the offence of public nuisance. As already noted, Lord Bingham in the
leading judgment considered that the public generally or an unnamed section of
it had to be affected. 66 Furthermore, with regard to the appropriate use of public
nuisance law Lord Bingham stated that he was swayed by Spencer’s argument that
the expansion of statutory law had rendered the offence obsolete. 67 Nevertheless,
Lord Bingham, Lord Rodger and Baroness Hale all reiterated what has been said
many times in the House of Lords, namely that the court’s purpose was not to
conduct a law reform exercise—the court did not have the power to abolish offences
or create new ones, this was a matter for Parliament. 68 However, Lord Bingham
60 Spencer, ‘‘Public Nuisance’’ (1989) 48 C.L.J. 55 at 77.
61 The penalty of imprisonment being removed under s.71 of the Criminal Justice Act
1982.
62 Ashworth, [2004] Crim. L.R. 303.
63 Ashworth [2004] Crim. L.R. 303 at 304.
64 Ashworth [2004] Crim. L.R. 303, cited at 305.
65 [2005] UKHL 63; [2006 1 A.C. 459.
66 [2005] UKHL 63; [2006 1 A.C. 459 at [37].
67 [2005] UKHL 63; [2006 1 A.C. 459 at [37].
68 [2005] UKHL 63; [2006 1 A.C. 459 at [31], [54] and [58] respectively.
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