Spring Equinox, 2021
Some of those defending clause 59 of the Police, Crime, Sentencing, Courts and Anything Else the Government Can Get Away With Bill point out that one purpose of the provision is to set out in statute the old common law offence of public nuisance.
The view is that the enactment is merely an exercise in modernisation and simplification – that there is nothing for us to worry our heads about.
And as this blog has already explained, part of the origin of the proposal is a Law Commission report from 2015.
There is a law more powerful than any statute or common law right, more powerful even than any great charter.
And that is the law of unintended consequences.
Here is a story.
There was once an obscure provision in the Post Office (Amendment Act) 1935 that, in turn, amended the Post Office Act 1908:
And for seventy years the offence was hardly noticed, though it was reenacted from time to time as telecommunications legislation was, ahem, modernised and simplified.
Then in 2003 it was reenacted yet again, but in terms that (without any proper consideration) ended up covering the entire internet:
But it was still not really noticed.
Until one day some bright spark at the crown prosecution service realised the provision’s broad terms were a prosecutorial gift in the age of social media.
This resulted in the once-famous TwitterJokeTrial case and its various appeals, which ended with a hearing before the lord chief justice.
In allowing the appeal against conviction, the lord chief justice said:
In other words: the intention of the 2003 reenactment had not been to widen the scope of the offence in respect of fundamental freedoms.
(Declaration of interest: I was the appeal solicitor before the high court in that case.)
Coming back to clause 59, it may well be that the intended effect of clause 59 is to merely restate the existing law.
Some are convinced by this view:
This is particularly so when the Bill is explicitly restating the common law. I would expect the Courts to apply the old caselaw to the new, statutory offence.— Yet Another Tweeting Barrister (@TweetingYet) March 20, 2021
What we will have, once enacted, will be an offence – that is, an arrestable and chargeable offence – which, on the face of it is in extraordinary broad terms, using such everyday language as ‘annoyance’.
It may be that the higher courts will, as any appeals come in, apply the technical meaning in property law of ‘annoyance’.
The law in practice is not that (only) of the judgments of the high court and above: it is what police officers and crown prosecution service case workers believe the law to be and see the law as it is set out.
It is also can be what zealous complainants to the police say it to be.
And none of these people will – understandable and perhaps rightly – be well versed in the case law of ‘annoyance’ in respect of the old law of public nuisance.
They will just see an arresting and charging power – and a power to set conditions.
So it should not be left to the courts ‘to apply the old caselaw’.
Criminal offences – and their limits – need to be clear and precise to everyone involved: citizen, complainant, arresting officer, crown prosecution service case worker, busy junior legal aid solicitor giving advice on plea – as well as to erudite barristers and even more erudite judges.
And so: even taking the point about this being a mere modernisation and simplification at its highest, clause 59 currently contains worryingly wide drafting.
Most people reading clause 59 by itself will believe there is a criminal offence – with a sentence of up to ten years – for causing mere annoyance.
Even if that it not the government’s intention, that is how the current provision can be read.
And because of this, people may suffer the life-changing events of being arrested and being charged – and may even plead guilty.
Unless, of course, that is the government’s real intention.
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