The use of the new statutory public nuisance offence to prosecute political and environmental protest

Introduction
On 28 June 2022, section 78 of the Police, Crime, Sentencing and Courts Act 2022 (‘the PCSCA’) came into force. Following a recommendation by the Law Commission, the new statutory offence of intentionally or recklessly causing public nuisance codified and abolished the old offence of common law public nuisance.

Since its introduction, according to at least one press report, the CPS had by the end of 2022 issued at least 201 charges of statutory public nuisance aimed at individuals participating in protest action.

This brief article sets out:

1. Background to the old common law offence;
2. Elements of the statutory offence;
3. Key areas of contention; and
4. Brief comment.  

The old common law offence
In Rimmington [2005] UKHL 63, the House of Lords approved the following definition of the common law offence of public nuisance: ‘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, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.’

It its 2015 report, ‘Simplification of Criminal Law: Public Nuisance and Outraging Decency’ (Law Com No. 358), the Law Commission recommended codification of the common law offence into statute, with a strengthened fault element, and a ‘reasonable excuse’ defence (§1.13).

Parliament adopted the recommendations of the 2015 Report, including the suggested wording of section 78 of the PCSCA. The Explanatory Notes for Section 78 note that, ‘Section 78 gives effect to recommendations made by the Law Commission in their July 2015 Report’ (§96).

The Law Commission report recognised that the offence was broadly framed. As a result, the Law Commission strongly recommended that:

1. It would be desirable to avoid using the (public nuisance) offence in cases where a more narrowly targeted offence with a limited penalty is adequate for the defendant’s conduct. Amongst other reasons, this secures better (because of more detailed) labelling; and
2. The CPS ought to provide guidance on charging practice in this respect including that the offence should not be used when a more specific offence is available, except for good reason.

Elements of the statutory offence
Section 78 of the PCSCA creates an offence of intentionally or recklessly causing public nuisance, where four elements are met:

1. A person does an act, or omits to do an act that they are required to do by any enactment or rule of law (s.78(1));
2. The person’s act causes or creates a risk of ‘serious harm’ (s. 78(1)(b)(i)). Alternatively, the person’s act obstructs others in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large (s. 78(1)(b)(ii)).
   ‘Serious harm’ includes for the purposes of section 78 of the PCSCA, any damage to property, personal injury, disease, or death. ‘Serious harm’ further includes serious distress, serious annoyance, serious inconvenience, or serious loss of amenity. (s. 78(2));
3. The serious harm, risk of serious harm, or the obstruction to others, is to ‘the public or a section of the public’ (s. 78(1)(b)); and
4. The person intends their act or omission will have the consequence mentioned, or is reckless as to whether it will have such a consequence (s. 78(1)(c)).  

In addition, section 78(3) creates a statutory defence where the person charged with an offence proves that they had a ‘reasonable excuse’ for the relevant ‘act or omission.’

Section 78 has a maximum sentence of 10 years’ imprisonment.

Areas of contention
Section of the public
The gravamen of the public nuisance offence is that it affects or causes a risk to ‘the public or a section of the public.’ It is important to pay close attention to the function of this element of the offence.

In Rimmington, the Appellate Committee of the House of Lords conducted a detailed review of the relevant authorities on this issue:

1. The Committee distinguished between a private and public nuisance. An action for private nuisance was ‘developed to protect the right of an occupier of land to enjoy it without substantial and unreasonable interference’;
2. On the other hand, public or common nuisance sought to capture other actions or omissions which caused injury to ‘the local community as a whole’ rather than to individual victims, and where ‘members of the public suffered injury to their rights as such rather than as private owners or occupiers of land’ (§6);
3. Public nuisance has therefore always been about causing offence to the community (or ‘common injury’, in other words, a representative cross-section of the section of the public concerned), rather than being aimed at protecting particular persons or individuals (§8- 10). This is the ‘distinguishing feature’ of the offence (§12). It remained an essential characteristic and ‘core’ element of a public nuisance that, ‘it affects the community, members of the public as a whole, rather than merely individuals’;
4. Lord Bingham cited Denning LJ in the case of Attorney General v PYA Quarries Ltd [1957] 2 QB 169, where he stated that, ‘a public nuisance is a nuisance which is so widespread in its range or indiscriminate in its effect.’   

The Law Commission reiterated the ‘public’ / ‘section of the public’ element requirement as central and distinguishing to an offence of public nuisance.

Risk of serious harm
The level of ‘risk’ required to prove the case where the prosecution assert an individual has caused a ‘risk’ of serious harm rather than the specific consequence of harm will be relevant, and may require more detailed direction.

Convention rights engagement / reasonable excuse defence
In Attorney General’s Reference (No. 1) [2022] EWCA Crim 125, the Court of Appeal (Criminal Division) (‘CACD’) confirmed that where a case engages relevant Convention rights, and ‘the court decides that proof of the ingredients of a particular offence does not in itself demonstrate [the] proportionality [of any criminal conviction that may flow], then a fact-sensitive assessment will generally be required’ (§68). In those circumstances, a defence of lawful or reasonable excuse may provide a route by which the proportionality of a potential criminal conviction can be carried out – i.e. the prosecution must further prove that a conviction would be a proportionate interference with Convention rights in all the circumstances. Of particular note where this exercise applies is that, ‘A criminal conviction is one of the most serious forms of interference with the right to freedom of expression’ (§67). 

On the facts of the specific case concerning the toppling of the Edward Colston statue in Bristol, CACD held that given the (not disputed) damage caused to the statue (and value of such damage), ‘prosecution and conviction for causing significant damage to property during protest would fall outside the protection of the Convention... because the conduct in question was violent or not peaceful’ (§§115, 120). CACD noted that on the other hand, an offence of criminal damage causing damage which is minor or temporary arising in the context of a protest would need to be subject to a case-specific assessment of the proportionality of a criminal conviction at least in connection with damage to public property.

Therefore, each case is both fact and offence-making provision dependant:

1. The Court must first decide whether the action it is considering engages the relevant Convention rights (for example, if it is violent, it does not);
2. The Court must then decide whether the statutory provision in section 78 of the PCSCA as it applies in the particular factual matrix of the case would itself, without more, ensure any conviction is a proportionate interference to the exercise of Convention rights.  

The above approach was recently endorsed by the Supreme Court in the case of Reference by the Attorney General for Northern Ireland [2022] UKSC 32 (‘AGNI’).

Due to the breadth of the definition of ‘serious harm’ under s.78(2), the range of factual circumstances that a statutory public nuisance offence may cover are broad. Therefore, (ii) above will heavily depend on the facts of a particular case.

For example, if the risk of ‘serious harm’ asserted is a risk of serious harm of death or personal injury, it is likely that if the prosecution is able to prove that the act of protest produced a risk of death or personal injury this will be sufficient to ensure that a criminal conviction is a proportionate interference with the exercise of any Convention rights. Otherwise, the Defence would be arguing that even if the jury found that the protest action produced a risk as high as death or personal injury, it should be left open to them to find that the exercise of Convention rights could potentially justify such a risk of serious harm to others. It is unlikely the courts will be sympathetic to such an argument. The better case in such circumstances is to argue on the evidence whether the risk asserted in fact existed at all.

By way of second example, if the protest action prosecuted produced serious inconvenience, or annoyance (e.g. slowing traffic), or even some minor damage to public property, or a risk of the same, it is more likely that proof of the elements of the offence (i)- (iv) above alone would not automatically result in a proportionate interference by way of a criminal conviction. In such a factual matrix, those elements of the ‘offence-making provision’ under section 78 are arguably insufficient to make a potential criminal conviction Convention compliant. ‘Reasonable excuse’ applies and should be read as set out in Ziegler [2021] UKSC 23, and AGNI, to act as a defence and safeguard that would require any tribunal of fact to further assess the proportionality of condemning the protestor to a criminal conviction in all of the circumstances that apply.

Comment
The common law offence of public nuisance was traditionally, and frequently used to prosecute significant environmental offences. This included air pollution and the release of noxious substances by corporations or individuals that caused real harm to the general public. 

There is no irony lost in the fact the same offence in statutory form is now being zealously deployed to prosecute environmental protestors.

As a matter of principle, prosecutors should not be deploying this provision for offending that can be charged under appropriate, narrowly construed statutory provisions. The Law Commission warned against this, and CPS guidance requires prosecutors to select the most appropriate offence for a set of facts, and not to ‘overcharge.’

During trial, parties should be alive to the above points of contention, the intended function of the offence, and at the point of directions of law seek to provide the most appropriate guidance to the jury in respect of each element. Even if section 78 itself is broadly construed, fairness demands narrow, specific directions best suited to the facts of the case.