The proposed new clause 59 offence of ‘intentionally or recklessly causing public nuisance’

15th March 2021

There is currently a bill before parliament that will, among other things, create a new statutory offence of ‘public nuisance’.

This new offence – as currently set out in the bill – is itself causing annoyance and distress.

Why is it being proposed?

And what should parliament do about it?

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Like a lamp in Aladdin – it is a new offence for an old one.

If the new offence is enacted then the current ‘common law’ (that is, non-statutory) offence of public nuisance will be abolished.

The current offence is ill-defined and rarely used – and it has been the subject of 2015 reform proposals from the Law Commission – see here.

(Of course, the fact that the Law Commission proposed reform in 2015 is not the reason why the home office have chosen to propose changes in 2021.)

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On the face of it, reform and simplification are good things.

Who could possibly oppose something as laudable as reform and simplification?

And the Law Commission does have a point – the current law is somewhat vague and archaic.

The current law is usually stated as:

‘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 bill before parliament proposes that old offence to be replaced by this:

As you will see there are elements of the current offence copied over to the new offence – and that although this is an exercise in ‘simplification’ it also happens to be rather longer.

Words like ‘annoyance’ are added.

But the new offence has not plucked the word ‘annoyance’ out of the air: annoyance can be a component of the current offence, and it has featured in case law.

The word ‘annoy’ (and its variants) is mentioned thirty-seven times in the Law Commission report.

The Law Commission summarises their view as (at paragraph 3.12):

‘One question is the nature of the right or interest which public nuisance seeks to protect.  In our view, its proper use is to protect the rights of members of the public to enjoy public spaces and use public rights (such as rights of way) without danger, interference or annoyance.’

Whatever ills can be blamed on the home secretary and the home office, the content of this proposed provision is not entirely of their creation.

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But.

Each and every piece of legislation needs to be scrutinised on its own terms – and neither parliamentarians nor the public should just nod-along because the magic words ‘reform’ and ‘simplification’ are invoked.

Never trust the home office.

And if one looks through clause 59 carefully and trace through how it works, it is potentially a chilling and illiberal provision.

For example (with emphasis added):

A person commits an offence if— (a) the person— (i) does an act […]  [which](b) the person’s act or omission […] (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  […]  is reckless as to whether it will have such a consequence. […]  (2) For the purposes of subsection (1) an act or omission causes serious harm to a person if, as a result, the person […] (c) suffers serious distress, serious annoyance, serious inconvenience or serious loss of amenity, or (d) is put at risk of suffering anything mentioned […].

The offence is thereby made out not if a person is caused ‘serious annoyance’ but only if there is a ‘risk’ of them suffering it.

And there does not need need to be any directed intention – mere recklessness will suffice.

The maximum sentence for simply putting someone ‘at risk of suffering’ serious annoyance is imprisonment for a term not exceeding ten years.

Of course, maximum sentences are maximum sentences, and in practice the penalties will be lower.

Yet, the creation of such an offence in these terms will have a knock-on effects on the powers of police to arrest and to set conditions.

And it is in the day-to-day exercises of such powers by the police that the real chill of any offence is most keenly felt – and not the ultimate sentencing power of a court.

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This provision and other provisions in the bill before parliament have the potential to greatly restrict the rights of individuals to protest – or even go about their everyday activities.

As such, such provisions should receive the anxious scrutiny of parliamentarians. 

Despite the Law Commission origins of the proposed reform – there may be plenty here that the home office have added – and for various illiberal reasons.

Members of parliament are not there to nod-along – and this particular proposal should not just be nodded-through.

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22 thoughts on “The proposed new clause 59 offence of ‘intentionally or recklessly causing public nuisance’”

  1. One is tempted to think that the ‘annoyance’ addition is specifically targetted at Steve Bray.

    1. Too right, Mr. Mardell. This should be called the “Steve Bray Nuisance Law.”

      Government Ministers clearly hate having their right to a peaceful interview disturbed by Mr. Bray. Or to be doorstropped with awkward questions on their way into/out of the Palace of Westminster. So they have created a law to deal with him. But to do so, they have had to effectively shut off Parliament Sq to anyone not officially part of the Bubble.

  2. Excellent piece. Thanks for putting the detail that one would hope “quality” media would have highlighted. Nothing Patel does surprises but good to see it dissected.
    With intrusions on basic liberty like this, why the fuss about national identity cards (which actually help the less privileged)? Still, we have blue passports again….

  3. Warning: Stupid legal question
    If the proposed offence, and 10 years penalty, is for causing (or risk of causing) “serious annoyance”, then could it be used to prosecute those (men) who impinge on women’s enjoyment and use of public spaces , for example, as described by Marina Hyde or Shelagh Fogarty recently?
    And if a protester (or vigil-er) were prosecuted on this basis, could they point to a precedents where (hypothetically) police had not prosecuted such cases involving harassment of women by men as a sort of “seriousness test?”
    This supposes of course that the government is NOT about to significantly increase resources to police and criminal justice to improve response to sexual assaults etc.

  4. Thank you. What a deeply and depressingly authoritarian piece of legislation, which will almost certainly get through the House of Commons, but may get revised in the Lords.

    It may prove interesting to see how far the courts, and juries in particular, react to having to opine on a “risk” of there being a danger of disruption.

    Rather like the mock offence of “conspiracy to conspire”, this legislation is good as an excuse for arresting people and that may be the objective rather than actually getting people convicted.

    I think all you had to write was one of your sentences.

    “Never trust the home office”

  5. Dear David,

    As a non-expert, I would be interested to hear your view on whether or not this legislation conflicts with the Human Rights Act 1998.

    The government claims it does not conflict. At https://www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021-protest-powers-factsheet, I find the following text:

    “4.3 How will protesters’ rights be protected?

    When using these, or existing public order powers, the police must act within the law and be able to demonstrate that their use of powers are necessary and proportionate. They must act compatibly with human rights, principally Article 10 (freedom of expression) and Article 11 (freedom of association).”

    If you take this paragraph at face value, it follows that the Human Right Act (and thus the European Convention on Human Rights) provides only very weak protection of the right to protest. You have previously written “The act is not an especially powerful statute.” Is this a case in point?

  6. How different is the existing Common Law “the effect of the act or omission is to endanger the comfort of (a part of) the public” – with, let it be remembered, a maximum penalty of Life imprisonment, to the proposed s59 offence of “putting at risk a section of the public suffering serious annoyance or serious inconvenience”? “Endanger comfort” v. “risk serious annoyance”.

    I wonder if a more significant loss may be the Common Law rule that Public Nuisance charges should not be brought where there is an existing statutory offence.

    That rule was clearly set out in a House of Lords case R v Rimmington [available at https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKHL/2005/63.html%5D (perhaps most clearly at paragraphs 30 and 54 of the judgement).

    However, if there is a new statutory offence, then there is nothing to stop prosecutions using the new offence, even if it overlaps with much less serious statutory offences.

  7. 1(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.

    Johnson and Gove ‘seriously annoyed’ me when they lied about Brexit (as confirmed by Cummings’ published admissions) – but I guess telling the truth is not mandatory by enactment or rule of law. Likewise the Scottish shellfish industry suffering ‘serious distress, serious annoyance, serious inconvenience and serious loss of amenity’ through reckless signing of an unworkable agreement with the EU have no claim whereas, as mentioned by others, a man with a placard may fall foul of this law.

  8. Apparently Cressida Dick has been lobbying for “change” to police powers to enable them to “deal better” with protests in general (that is, increased powers to stop protests having any impact) because the legislation – the Public Order Act, passed 35 years ago, in 1986 – is “very old”. (Incidentally, Cressida is, like me, substantially older than that Act.) See https://www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021-protest-powers-factsheet

    She must be just as concerned about the equally “outdated” Police and Criminal Evidence Act 1984, more worried about the Criminal Damage Act 1971 and Theft Act 1968, aghast about the aged Offences Against the Person Act 1861, and apoplectic about the ancient Treason Act 1351. As for Magna Carta, let alone all the uncodified common law powers the police have…

    That so-called “factsheet” says the new statutory offence of public nuisance will “cover the same conduct as the existing common law offence of public nuisance”. If that is true, why doesn’t the clause say so? Rather than for example broadening the offence to a situation where a person is put “at risk” of suffering “annoyance”?

    In fact, it seems to me this proposed new law would go very much further than the current common law, and that factsheet makes it clear the act as a whole is intended to increase police powers in this area.

    Although not in this particular clause, equally worrying to my mind is the power reserved to the Home Secretary in clauses to either side, to define what “serious disruption” might mean by regulation

    But if we in the business of putting the common law on a statutory basis, perhaps we could put other aspects of the criminal common law – common assault, or breach of the peace, say – on a statutory basis.

    And then – rather than thinking that changing the law will magically change behaviour – perhaps funding the police and forensic and allied services, the CPS and criminal lawyers, and the courts, sufficiently to deal in reasonable time with the cases that come up, rather than lack of resources imposing delays of a year, two years, or more, before cases are investigated and come to court.

  9. Annoyance would be subjective. For example, I find a dripping tap HIGHLY annoying, but other people would not even notice.
    If the offence is merely the risk, not having to prove annoyance was actually caused, anything could become illegal.
    What safeguards could be added?

  10. Amongst other groups that would be routinely at risk under this proposed legislation could be the hunt monitors (often ex police officers in the case of the League Against Cruel Sports). These individuals collect evidence of illegal hunting, blocking of badger setts and other criminal offences such as assault … they seriously annoy the hunts, terrier men etc prosecuted largely on their evidence.

  11. Turning up the temperature another degree or two on the frogs. It seems that the more reckless, and selfish the rule breaker, the more the rule breaker seeks to impose draconian rules on others. As Nietzchean super-beings (Incredible Hulk, Clark Kent to name but two of the Prime Minister’s alter-Super-egos – is he really that immature, to which the answer can only be yes) the law of the land or, more pertinently on this day, international law, do not apply to the Prime Minister, the Home Secretary and the Prime Minister’s personal anti-EU thug of a sidekick, Baron Frost. No, the law only applies to the little people, and especially to moaning, do-gooding liberals, one-nation Tories and Ernie Bevinite Labour .

  12. Excellent blog post, as ever. Although I do think you missed a trick in explaining your comments policy.

    “Comments will not be published if there is a risk of serious annoyance.”

  13. Is – “The offence is thereby made out not if a person is caused ‘serious annoyance’ but only if there is a ‘risk’ of them suffering it.”
    a mistype of;

    The offence is thereby made out not only if a person is caused ‘serious annoyance’ but also if there is a ‘risk’ of them suffering it.”

    How are they defining “protest”?
    How are they defining “annoyance”?

    This is terrifying.

  14. My MP voted for this Bill, but replied to my email opposing it stating that:
    a) I can respond to the Joint Committee on Human Rights call for evidence by May 14th; and
    b) “write to me again with your specific concerns about individual clauses and any proposed amendments you would propose / support”.

    In light of this, could I beg for suggestions from the experts around here of appropriate amendments to propose? I would like to think I did all I can to oppose this, but am not a lawyer…

  15. Subs.(1)(b)(ii) of clause 59 is worth some attention too. It appears to criminalise parking on the pavement — an ‘act’ which ‘obstructs the public…in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large’ — i.e. the right of the public to use the pavement of a highway, subject to the intention test in subs.(1)(c) (it might be tricky to show intent, but less so to demonstrate recklessness as to effect), and the reasonable excuse defence in subs.(3) (a stated desire to avoid obstructing traffic as opposed to pedestrians?).
    Similarly, it would appear also to apply to obstructing the highway in general, but with a potential sentence on conviction on indictment of ten years vice a level 3 fine on summary conviction under s.137 of the Highways Act 1980.
    It might be said that these things are already a common law public nuisance. But who is going to prosecute with a jury trial for parking on the pavement (and what jury of motorists would convict)? And as David Matthew has commented, the new codified law does not appear to rule out its use in place of any existing statutory offence which covers the same act.
    Personally, I’d be delighted to see clause 59 applied to these things — but I’m far from sure that’s the Government’s intention.

  16. This is really helpful on public nuisance thank you. There is a considerable lack of official guidance on this, probably because of the unclear state of the law. As you say, the law is undoubtedly in need of reform but whether the government’s current approach is appropriate seems questionable in terms of constitutional rights and good law. I work in security and used to work in criminal justice. I am coming across situations right now where some knowledge of the law on public nuisance is needed; quite apart from the current Covid rules which are hard to have to deal with from a law enforcement/security perspective.

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