Clause 59 of the government’s Police, Crime, Sentencing and Courts Bill, which has its first debate in the Commons tomorrow, would replace the existing common law (judge-made) offence of public nuisance with a new statutory definition.
In principle, this should be a good thing. The only way of deciding what conduct is prohibited by a common law offence is to read through past cases (or lawyers’ summaries of them). Because no penalty has been specified, the maximum is normally life imprisonment. Much better, surely, to have a clear statutory definition with a penalty limited by parliament. And that was just what the Law Commission recommended for public nuisance in 2015.
In practice, though, you need to look very carefully at what the government is now asking parliament to approve.
First, though, let’s take an example of a public nuisance prosecution: the case of three campaigners who were imprisoned for disrupting traffic near a fracking site and released by the Court of Appeal in 2018.
The common law offence
Giving judgment on their appeal, the lord chief justice, Lord Burnett of Maldon, implicitly approved this well-established summary of the common law offence:
A person is guilty of a public nuisance (also known as common nuisance), who
(a) does an act not warranted by law, or
(b) omits to discharge a legal duty,
if the effect of the act or omission is to endanger the life, health, property, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.
The mental element (mens rea) to be proved is that the defendant knew or ought to have known that the nuisance would result.
The new offence
This is how clause 59 begins:
(1) A person commits an offence if—
(a) the person—
(i) does an act, or
(ii) omits to do an act that they are required to do by any enactment or rule of law,
(b) the person’s act or omission—
(i) causes serious harm to the public or a section of the public, or
(ii) obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and
(c) the person intends that their act or omission will have a consequence mentioned in paragraph (b) or is reckless as to whether it will have such a consequence.
So the prosecutor has to prove three things.
The defendant has done something or failed to do something;
That act or omission has caused serious harm to people or stopped people from doing something they could otherwise have done; and
The defendant acted intentionally or recklessly.
That doesn’t look very different from the common law offence, apart from the need to prove recklessness. But clause 59 has more to say:
(2) For the purposes of subsection (1) an act or omission causes serious harm to a person if, as a result, the person—
(a) suffers death, personal injury or disease,
(b) suffers loss of, or damage to, property,
(c) suffers serious distress, serious annoyance, serious inconvenience or serious loss of amenity, or
(d) is put at risk of suffering anything mentioned in paragraphs (a) to (c).
(3) It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the act or omission mentioned in paragraph (a) of that subsection.
So we need to rewrite my paragraph (2) above:
That act or omission
has caused serious harm to people; or
damaged their property; or
has caused them serious distress; or
serious annoyance; or
serious inconvenience; or
serious loss of amenity; or
stopped people from doing something they could otherwise have done.
Note that the damage to property does not have to be serious. And note, too, that harm can be no more than annoyance or inconvenience, so long as it’s “serious”.
There is a defence of reasonable excuse; but it’s for defendant to establish. “The burden of proof is placed on the defendant,” according to the government’s explanatory notes, “as the facts as to whether they have a reasonable excuse will be within their knowledge… Although not explicit [sic] set out, the standard to which the defendant will be required to prove the defence is the balance of probabilities.”
So if you do something — and people’s property is damaged as a result; or they’re seriously annoyed by your behaviour; or put to serious inconvenience — you could end up in prison.
The new penalty
The maximum penalty on conviction in the Crown Court is 10 years. That’s less than life imprisonment, of course. But let’s return to the case I mentioned earlier.
The protestors caused a nuisance by blocking the main road between Blackpool and Preston from about 8am to about 5 pm on a Tuesday in July 2017. They did this by climbing onto lorries that were carrying specialist drilling equipment to a proposed fracking site. Some protestors stayed on the lorries for more than three days, although the traffic started moving after the first day when police set up a contraflow arrangement. Substantial disruption was caused to thousands of people.
Two of the defendants were given 16 months’ imprisonment and the third was sentenced to 15 months. The Court of Appeal judges said this:
In our judgment the sentence which should have been imposed on 26 September was a community order with a significant requirement for unpaid work. However, by the time of the hearing, the appellants had been in custody for three weeks meaning that they had served a sentence equivalent to six weeks. As a result, and only in consequence of that, we concluded that the appropriate sentence was a conditional discharge for two years. A conditional discharge leaves the appellants vulnerable to being re-sentenced if they offend in any way within the period of two years.
And why did the appeal judges decide that a prison sentence was not needed? Because this was a common law offence, the judges looked at past cases. “It is well established,” they said, “that committing crimes, at least non-violent crimes, in the course of peaceful protest does not generally impute high levels of culpability.”
They quoted Lord Hoffmann from an earlier case about civil disobedience:
It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account.
Or, as Burnett and his colleagues put it:
A sense of proportion on the part of the offenders in avoiding excessive damage or inconvenience is matched by a relatively benign approach to sentencing. When sentencing an offender, the value of the right to freedom of expression finds its voice in the approach to sentencing.
That is how the law currently stands. But a person convicted of committing a nuisance after this provision becomes law would be liable to a term of imprisonment not exceeding 10 years, an unlimited fine or both. This is a relatively high penalty. Its sends a signal to sentencers that parliament regards this as a relatively serious offence. A protest like the one I have been discussing would surely have been punished by a substantial prison sentence if these proposals had been law.
The Law Commission
This clause closely follows recommendations made by the government’s law reform advisers in 2015 — before the fracking case. The Law Commission carefully avoided recommending a maximum sentence for its proposed new statutory offence. But it did offer some guidance:
As the offence is intended to address serious cases for which other offences are not adequate, if a maximum sentence is set it should be high enough to cover these cases.
But the Law Commission then made an important point:
It is … desirable to avoid using the offence in cases where a more narrowly targeted offence with a limited penalty is adequate for the defendant’s conduct; among other reasons, this secures better (because more detailed) labelling. This means that the penalty will be that specifically provided for the particular kind of wrongdoing, and that the defendant’s criminal record will be more informative.
The Law Commission suggested that the Crown Prosecution Service should draw up guidelines stating that the new statutory offence “should not be used when a more specific offence is available except for good reasons”.
Public nuisance has grown into a remarkably broad offence. It covers everything from threatening to jump off a motorway bridge, diving into a river during a boat race, failing to control horses on the highway, exposure while urinating in public, sniffing glue in a public place and sending abusive emails to a police officer. Alternative charges could have been brought in all of these cases, most of them with much lower maximum sentences.
The government can plausibly say that it is simply following the Law Commission’s recommendations. But the Law Commission did not recommend a 10-year sentence. If the maximum had been set at two years, prosecutors would have little incentive to charge this new statutory offence whenever a more suitable alternative was available.
Peaceful protestors who have caused inconvenience but no damage — or damage but no inconvenience — will, for the first time be facing lengthy prison sentences. This is precisely the wrong time to be proposing such a fundamental change.