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?
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.)
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.
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.
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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