An injunction to restrain a public nuisance can be regarded as the common law’s ASBO. An injunction can be obtained in civil proceedings to prevent behaviour which would injure the health, safety, comfort or morals of the public or some part of it. A breach of the injunction would presumably amount to the crime of public nuisance (as well as to contempt of court for breach of the order).

Public nuisance and human rights: The ingredients of the crime of public nuisance and the tort of public nuisance are probably the same. The crime is rarely charged for the very good reason that most of the categories of behaviour to which it relates have been regulated by statute. But it is available to fill the gaps in statute law. For example, it was used to punish, and restrain raves – open air parties involving noise, mess, and other problems for local residents – after they appeared, and before Parliament got around to legislating to control them in the Public Order Act 1994. But is it right, and consistent with ECHR, that this offence should be retained as way of punishing annoying but unspecified forms of behaviour which Parliament and the Common Law might not have thought of? After all, in the case of an ASBO someone may be punished for annoying and only quasi-criminal behaviour, but that person has at least received notice of the things he is not allowed to do. That is not necessarily the case with a prosecution for public nuisance.

There is a second question. Typical behaviours which amount to public nuisance include pollution, obstruction, and display of obscene material, and of course, holding raves which create noise and mess. Is it right, where Parliament has legislated against various kinds of annoying behaviour, creating in many cases summary offences, a prosecutor should have the option of charging exactly that behaviour as public nuisance, which is triable either way and with unlimited sentence, because the prosecutor rather fancies that the penalties Parliament has laid down are not harsh enough for the offender?

Both these questions came before the House of Lords recently in R. v. Rimmington and R v. Goldstein [2005] UKHL 63.

Mr. Rimmington was charged in a single count with a campaign of sending racially offensive material by post to a number of individuals between 1992 and 2001. It might have been felt that the sanctions likely to follow conviction under the Protection from Harassment Act 1997 were not sufficiently severe.

Mr. Goldstein’s alleged offence was a joke which was intended to be harmless. In paying an old debt, Mr. Goldstein, an orthodox Jew, included in the envelope with the cheque some salt. This was a reference to use of salt to preserve kosher meat (and hence a joke about the age of the debt). Some salt leaked and caused an anthrax scare at a sorting office. The prosecutor was presumably unable to think of any charge. Mr. Goldstein had unintentionally but perhaps carelessly caused a lot of trouble and alarm, and there must have been a feeling that ‘something should be done.’

Both men’s convictions were upheld by a unanimous Court of Appeal R v Rimmington [2003] EWCA Crim 3450. Both were quashed by a unanimous House of Lords.

This House of Lords judgment contains such a detailed discussion of the offence in the leading speech, by Lord Bingham, that it is sure become the starting point for researching the law on public nuisance. I will summarize, and note some implications of, the way the House answered the questions put to it. I have suggested that the questions were about (1) the fairness of keeping a common law offence with unlimited penalty in parallel with a statutory offence on the same facts; and (2) the fairness keeping what could be seen as an unpredictably flexible ‘catch-all offence.’ The Court of Appeal certified questions for the House which covered roughly this ground in terms of whether the offence is compliant with ECHR. The Court of Appeal also certified questions about mens rea: in short, Mr. Goldstein seemed to have been careless in posting salt in an envelope which turned out to be leaky. Is liability so strict that his apparent carelessness would amount to mens rea¸ or not?

The certified question were drafted by the Court of Appeal in the following terms:
1. Is the mens rea requirement of the common law offence of causing a public nuisance satisfied by proving that the defendant either knew or ought to have known, in the sense that the means of knowledge were available to him, that there was a real risk that the consequence of his actions would be to create the sort of nuisance that in fact occurred? (as per R v Shorrock [1994] QB 279).

2. If not, what is the mens rea?

3. Is the offence of causing a public nuisance as currently defined compatible with Articles 7, 8 and 10 of the European Convention on Human Rights, or does the question of compatibility fall to be decided on the facts of the particular public nuisance alleged to have been caused?

4. If the latter, is it for the jury or the judge alone to decide the issues of compatibility?
[Copied from the end of the Court of Appeal judgment.]

The case has implications for sentencing. The House declared that it had no power to abolish a common law offence. However, it thought there is so much overlap with the modern statutory regulation of most kinds of public nuisance that there is a good case for abolishing this offence, at any rate where a statutory offence could have been charged. The House clearly did not like the way the offence could be charged to secure a harsher penalty than is available for a comparable statutory offence. The case is not, of course, a direct authority on sentencing for public nuisance, but would lend a lot of weight to any argument that where a public nuisance could have been charged as a statutory offence, the statutory penalty should be used as a de facto maximum.

The case has implications for the range of behaviour which could amount to a nuisance. The House did not say that sending salt through the post could not count as a nuisance, but did emphasize that in order to be fair the law must be developed incrementally. Therefore, anything charged as a public nuisance should not too dissimilar from facts which had in the past been held to amount to a nuisance.

In this way the House has attempted to close of the possibility of using public nuisance as a kind of prosecutors’ loophole, whether to secure a sentence more severe than which Parliament has provided for offences on the same facts, or to criminalize objectionable behaviour of kinds not foreseen by the law.

The House further confined the scope of the offence. It is an ingredient of the offence that the defendant’s actions must have injured ‘the public.’ But when does a group of persons count as ‘the public’? What Lord Bingham said at paragraph 38 was,

It seems to me clear that the facts alleged against Mr Rimmington, assuming them to be true, did not cause common injury to a section of the public and so lacked the essential ingredient of common nuisance, whatever other offence they may have constituted. The Crown contended that, if persistent and vexatious telephone calls were a public nuisance, it was a small and foreseeable step to embrace persistent and vexatious postal communications within that crime also. I would agree that if the telephone calls were properly covered it would be a small and foreseeable development, involving no change in the essential constituent elements of the offence, to embrace postal communications also. But, for reasons already given, the crime of public nuisance does not extend to separate and individual telephone calls, however persistent and vexatious.

So, although there is no further definition of what constitutes the public, it is clear that a group of named individuals, however large, is not a section of the public for this purpose.

Mens rea: liability is strict. The House decided that the correct test is ‘that the defendant is responsible for a nuisance which he knew, or ought to have known (because the means of knowledge were available to him), would be the consequence of what he did or omitted to do.’ That is what the authorities say is the test, and it is compliant with ECHR. The House did however in effect doubt those older cases where criminal liability had been found on the basis of vicarious responsibility. For the sake of completeness, I note that Mr. Goldstein’s conviction was quashed on a factual point: the House did not think it realistic to say that he should have foreseen that his salt would leak from the envelope and cause an anthrax scare.

A citizen’s ASBO? On the negative side, R v Rimmington has confined the scope of the offence of public nuisance to the point where it adds very little to the statutory provisions covering the kinds of thing which have been held public nuisances. Therefore, its utility to prosecutors is really very limited. On the other hand the decision does leave the edifice of the public nuisance case law largely intact. Reading through the decision one encounters all sorts of annoying behaviour which have been held to constitute a nuisance. Just the kinds of things for which ASBO’s are designed. But unlike an ASBO (where the applicant must be the police or local authority), anyone can sue for an injunction to restrain a public nuisance (and under certain circumstances can also recover damages). Technically it is a relator action, which in effect means that it the Attorney General must be approached for permission to continue. But it may be useful to victims of anti-social behaviour where the authorities should have sought an ASBO and have not.

Dr John Birchall - Professional English, Legal English, and Common Law Training