PUBLIC NUISANCES

This is a copy of an article first published in the Police Review 17 April 1998 copyright Neil Addison. It can be downloaded and reprinted for personal use but if reproduced in whole or in part the source must be acknowledged

'An urban war zone, an occupied territory. Loud talk, loud music, vulgarity, profanity, brutality, fistfights, and the sounds of gun-fire echoing in the streets. Murder attempted murder drive-by shootings, assault and battery, vandalism, arson and theft are commonplace. The community has become a staging area for gang related violence and a dumping ground for the weapons and instrumentalities of crime once the deed is done. Area residents have had their garages used as urinals, their homes commandeered as escape routes, their walls fences, garage doors, sidewalks and even their vehicles turned into a sullen canvas of gang graffiti. The people of this community are prisoners in their own homes. Verbal harassment, physical intimidation threats and retaliation are the likely fate of anyone who complains or tells the police'

These are not parts of a screen script for a Mad-Max type movie, but actual quotations from the beginning of the judgement of the Supreme Court of California in the case of The People ex rel Gallo v Acuna [1997] 14 Cal 4th 109. The community in question is the Rocksprings area of San Jose which had become the 'territory' of a gang known as 'Vario Sureno Locos' whose members were frequently convicted of minor criminal offences but whose behaviour as a group was so intimidating that they were able in effect to obtain of immunity from the law by terrorising Rocksprings inhabitants into acquiescence. It was clear to the city council of San Jose, that in this sort of situation the ordinary protections of the criminal law and criminal prosecution, were becoming inadequate. However their response was not to call for new law but instead to turn to a very ancient though increasingly overlooked part of the english common law the law of Public Nuisance. Their success in using this law has influenced law enforcement officials throughout the United States and could point the way to a revival of in the use of the law of public nuisance in England.

Under English common law a person is guilty of public nuisance if they

"do an act not warranted by law, or omit 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:"

This definition allows the law of public nuisance to cover a wide range of situations which may not have been foreseen or not adequately dealt with in existing legislation. For example in Sykes v. Holmes [1985] Crim.L.R. 791 trespassing on school premises after school hours and sniffing glue was held to be a public nuisance, in R. v. Madden, 61 Cr.App.R. 254, C.A., a bogus telephone call giving false information as to the presence of alleged explosives was a public nuisance as are "acid house/rave parties" R. v. Shorrock [1994] Q.B. 279, 98 Cr.App.R. 67

In R. v. Johnson (A.T.) [1996] 2 Cr.App.R. 434, the defendant made hundreds of obscene telephone calls over a five year period to 13 women in the South Cumbria area and it was held that his behaviour constituted a public nuisance. The case provides an example both of the wide range of situations which the law of public nuisance can cover and also its value in dealing with repetitive minor offending. Had Johnson not been convicted of public nuisance the only alternative charge would have been the summary offence under s43 Telecommunications Act 1984. Had that been the case he could only have been prosecuted for the phone calls in the six months proceeding his arrest and the penalties would have been trivial. However since he was prosecuted for public nuisance the court could deal with his actions over the entire five year period and had an unlimited sentencing power.

The question of how widespread the effect of a nuisance must be for it to qualify as a public nuisance, and therefore a crime rather than being merely a private nuisance which is only a tort, was considered by the Court of Appeal in Att.-Gen. v. P.Y.A. Quarries Ltd [1957] 2 Q.B. 169 .

Romer L.J (p184) said "It is clear in my opinion that any nuisance is 'public' which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. The sphere of the nuisance may be described generally as the 'neighbourhood'; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary in my judgement to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected_

Denning L.J (p190) added "A public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large."

Criminal Public nuisance is an either way offence and since it is a common law and not a statutory offence there is no limit to the sentence which can be imposed provided it is not 'inordinate' Castro v R [1880] 5QBD 490. Police therefore have the power to arrest for the crime of public nuisance using their general arrest powers in s24(1)(b) Police and Criminal Evidence Act 1984. Conspiracy to commit a public nuisance is also an offence R. v. Soul, 70 Cr.App.R. 295.

One of the reasons why public nuisance is hardly ever thought of today when criminal law is discussed may be that most of the cases quoted in the standard textbooks are old and the offences are phrased in archaic ways or deal with bizarre and unusual activities. For example R. v. Meade [1903] 19 T. L. R. 540, _going abroad in a public street armed, without lawful occasion, so as to be a nuisance and terror to the public' R. v. Lister and Biggs [1857] _keeping a fierce and unruly bull in a field crossed by a public footpath', R. v. Clark [1883] 15 Cox 171. ' exposing the naked dead body of a child in or near, and within view of, the highway, ;R. v. Hunter and others [1974] Q.B. 95, 'conspiracy to prevent the burial of a corpse'. The recitation of these cases in the main text books can often lead to the superficial impression that the law of public nuisance is no longer of relevance in the modern world. However shorn of its archaic phraseology 'going abroad in a public street armed, without lawful occasion, so as to be a nuisance and terror to the public' is as likely today as it was in 1903.

Although many forms of public nuisance can now be prosecuted under specific statutes or by-laws, the possibility of a prosecution for common law public nuisance is preserved (Interpretation Act 1978, s.18) unless a specific act says to the contrary. The only exception is where the alleged offence relates to a failure to discharge a legal duty created by statute. If any penalty for breach of the duty is laid down in the statute which creates then a prosecution for public nuisance is excluded. Saunders v. Holborn District Board of Works [1895] 1 Q.B. 64.

In deciding whether an offender is in fact guilty of the offence of public nuisance his intentions are not necessarily relevant. If the end result of his actions or behaviour is to affect the public and if the defendant knew or ought to have known that as a result of his action a public nuisance would be caused then the offence is committed: R. v. Shorrock [1994] 98 Cr.App.R. 67. It is perhaps notable that the words `knew or ought to have known' which are used in this 1994 case considering a centuries old part of the common law are almost exactly the same as those used in 1(1)(b) of the 1997 Protection from Harassment Act

Cases of public nuisance can be dealt with either by, Injunction, prosecution. Historically Injunctions to prevent a public nuisance were applied for by the Attorney General acting in his role as 'guardian of the public interest' in a 'relator action'. However a local authority can also apply for a public nuisance Injunction whenever it considers it 'expedient for the promotion or protection of the interests of the inhabitants' using its powers under s222 Local Government Act 1972. In the Acuna case the San Jose City Council had in fact obtained Injunctions in the first instance. These Injunctions prevented members of the gang from visiting Rocksprings or from congregating together. In California Breach of an Injunction is a Criminal offence and the San Jose Police and DA enforced the Injunction by arrest and prosecution for breach. That approach is similar to the planned use of Anti-Social Behaviour Orders in s1 of the current Crime and Disorder Bill.

Whilst breach of an Injunction is not an arrestable criminal offence in England it is at least arguable that the deliberate breaking of a public nuisance injunction combined with the evidence that was originally produced in order for the Injunction to be granted in the first place could constitute sufficient evidence for a prosecution for the criminal offence of public nuisance

However I see no reason why the English Police should not make more use of the existing criminal offence of public nuisance without having to wait for Injunctions to be obtained. Juveniles for example cannot be made subject to public nuisance Injunctions but they can be prosecuted for the crime of public nuisance. There are not (I hope) any areas in Britain quite as far gone as Rocksprings but there are undoubtedly many neighbourhoods where gangs gather at night drinking, shouting obscenities at locals as they go by, and generally creating an intimidating or frightening atmosphere. Whilst police try to control these situations it is often the case that only minor offences are provable such as s5 of the Public 0rder Act 1986 , Drunk and Disorderly and Criminal Damage which carry minimal penalties and act as little deterrent to a gang. If this situation continues for any period of time then there can be a growing air of lawlessness in the area, and a growing feeling of disillusionment amongst the residents at the inability of the police to deal with the situation.

Once the Police decide that they have such a situation with a recognisable group of offenders then they need to start thinking about prosecutions for public nuisance with the possibility of prison sentences at the end. To implement such a strategy will however need the situation to be approached on a planned basis and in particular it will probably have to mean not adopting a 'Zero Tolerance' strategy of prosecuting every minor offence. Instead of lots and lots of petty charges the objective should be to obtain sufficient evidence for one overall public nuisance charge or if the evidence is there, conspiracy to create a public nuisance.

To do this will mean the local police collecting together every item of evidence they have of offending however minor. The time X was heard shouting you *** at the old lady crossing the road, the time Y was seen threatening the man at number 10 who was too frightened to give evidence. Much of the evidence to prove a public nuisance prosecution could probably be based on police officers own observations and the observations of Housing Officers and Social workers so removing the need to obtain evidence from residents who will usually be too frightened to do so. Covert surveilance to obtain video or photographic evidence would also probably be sensible. A picture needs to be built up over a period of time of all activities which collectively affect the comfort and life of the neighbourhood. If that can be done then the crime of public nuisance can be proved and proving one charge which carries a possible unlimited jail sentence is likely to have far more impact on offenders than any number of minor visits to the local magistrates court.

Often the Police response to increased problems of public disorder is to call for new law but that can often mean that existing old law is ignored and forgotten. If the law enforcement officials of California can use the English law of public nuisance to deal with their problems I see no reason why English Police should not do the same.