Public Nuisance: Suggested Answer

Public Nuisance

Definition and Nature

  • Public nuisance is unique as it constitutes both a criminal offense and a tort (a civil wrong).

Criticisms of Public Nuisance

  • Lack of Clarity: The Law Commission views public nuisance as unclear and not well-defined.

  • ECHR Concerns: Some argue that public nuisance fails to meet the certainty requirements of the European Convention on Human Rights and the general principle of the rule of law.

  • Vagueness: John Spencer argued that the offense is too vague, covering too many different actions, making it an incoherent offense. He suggested its abolition, arguing most instances are covered by specific offenses.

  • Lord Bingham's View: In R v Rimmington and R v Goldstein, Lord Bingham stated that laws should be clear and certain so individuals know what conduct is forbidden before acting, and no one should be punished for acts not clearly punishable at the time they were committed.

  • Shift in Focus: Traditionally, public nuisance dealt with environmental issues like noise, smells, and obstruction, but these are now largely covered by other offenses, such as the Highways Act 1980 for obstructing the highway. The focus has shifted to more general forms of public misbehaviour, widening the scope of potential offenders.

  • Examples of Current Usage: Examples include obstructing the highway, hanging from bridges, lighting flares at football matches, extinguishing floodlights, littering forests, and hosting acid house parties.

  • Fault Element: The fault element is negligence. A defendant is liable if they knew or ought to have known of the risk of the nuisance that occurred. The Law Commission has criticized this aspect.

  • Vague Test: Older definitions refer to annoyance to "all the [Queen's] subjects," which is not literal, making the "class of people" test vague.

  • Sentencing Disparity: Sentencing statistics show wide variations, and sentencing powers for public nuisance are unlimited.

  • R v ROBERTS AND ORS (2018): The Court of Appeal overturned imprisonment sentences for fracking protesters, highlighting confusion and inconsistency in sentencing.

Law Commission's Proposed Reforms (2015)

  • Statutory Offense: The Law Commission recommended making public nuisance a statutory offense covering conduct that endangers life, health, property, or comfort of a section of the public, or obstructs them in exercising their rights.

  • Fault Element: The new offense should require the defendant to have either intended or been reckless in committing the act.

Conclusion

  • The Law Commission believes public nuisance should be retained as it covers a wide range of behaviour potentially not covered by other legislation.

  • Clarification through an Act of Parliament is needed to ensure the public understands the offense.