PUBLIC NUISANCE

(This is an edited version of Chapter 6 of "Harassment Law and Practice" published by Blackstone Press © Neil Addison. It can be downloaded and reprinted for personal use but if reproduced in whole or in part the source must be acknowledged

General

Public nuisance is both a civil tort and a criminal offence. It's origins of public nuisance go back to mediaeval times and a person is guilty of a public nuisance (also known as common 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:' 1 Hawk. c. 75; Wilkes v. Hungerford Market Co. [1835] 2 Bing.N.C. 281; R. v. Shorrock [1994] Q.B. 279, 98 Cr.App.R. 67

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 nuisance and 'an undue interference with the comfortable and convenient enjoyment of land' even though the awful users of the school premises where not there at the time. 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 ranging flexibility of the situations which the law of public nuisance can cover and also its value. Had the offence of public nuisance not been available the only offences for which Johnson could have been convicted would have been the summary offence under s43 Telecommunications Act 1984. Had that been the case then he could only have been prosecuted in relation to 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.

Extent of Public Nuisance

Most of the cases of public nuisance which have reached the courts have involved a risk to the health and comfort of the public by some form of pollution, usually the emission of fumes or the making of noise For example the emission of noxious smuts damaging the paintwork of a car on the highway and regular and excessive vehicle noise at night, was held to be a nuisance in Halsey v. Esso Petroleum Co. Ltd [1961] 1 W.L.R. 683. It is no defence to say that the alleged nuisance has existed for a number of years, : Foster v. Warblington District Council [1906] 1 K.B. 648; but proof of long continuance may justify a finding that it is not in fact a nuisance: Hole v. Barlow 1858 27 L.J.C.P. 208.

The question of how widespread the effect of a nuisance must be for it to qualify as a public nuisance, and therefore a crime as well as a tort, in contrast to 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 "I prefer to look to the reason of the thing and to say that 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."

The American Restatement Second of Torts 1965 para 821B defined public nuisance in similar terms as being an unreasonable interference with the exercise of 'public rights', a public right is 'one common to all members of the general public. It is collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured'

Criminal Public Nuisance

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 contrary to section 1(1) of the Criminal Law Act 1977 .

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 for most cases (Interpretation Act 1978, s.18). However where the alleged offence relates to a failure to discharge a legal duty that is not always the case. Where the duty does not exist at common law but is instead created by statute then in most cases any penalty for breach of the duty is laid down in the statute which creates it and 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 section 1(1)(b) of the 1997 Protection from Harassment Act

Examples of Public Nuisance

A public nuisance may be committed both by an act or by omission. In Att.-Gen. v. Tod Heatley [1897] 1 Ch. 560 it was held to be a public nuisance to allow land to accumulate rubbish, even though it was deposited there by others for whom the defendant was not responsible and in R. v. Watts [1703] 1 Salk. 357 allowing a house near the highway to become ruinous was again a public nuisance. If the effect of the nuisance is such as to affect the public then it cannot be legitimised merely by the fact that it has continued for a number of years Foster v. Warblington District Council [1906] 1 K.B. 648. In R. v. Stephens [1866] L.R. 1 Q.B. 702 an employer was found to be guilty of public nuisance even though he did not personally superintend the works complained, and had given express orders to the workmen that they should be carried on in a way which would have prevented the nuisance:

Public nuisances are often classified under the headings of ,

interference with comfort, enjoyment, or health;

acts dangerous to public safety ; and

acts injurious to public morals, decency, or order.

Many of the cases quoted in discussions of the law of public nuisance are old and 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, Williams v. East India Co. [1802] 3 East 192 keeping naphtha in a populous place in such quantities as to cause terror or danger; R. v. Mutters [1864] L. & C. 491 negligently blasting stone in a quarry, and thereby projecting large pieces of stone so as to endanger the safety of persons in houses and on the highways adjoining the quarry: ;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 relevant today as it was in 1903.

Legal Remedies

There are 3 legal procedures for dealing with cases of public nuisance namely

(a) by application for an Injunction

(c) by an action for damages

(b) by criminal prosecution

Since in most cases of public nuisance the injury or damage is, by definition, suffered by the community at large there are few circumstances in which an action will be for damages invariably it will either be an application for an injunction or a criminal prosecution. However the fact that there can be a claim for damages in certain cases is significant in considering reported cases on public nuisance. In the House of Lords case of Cambridge Water Co Ltd v Eastern Counties Leather plc 1994 1 All ER 53 Lord Goff commented

'Courts must be on guard when considering liability for damages in nuisance not to draw inappropriate conclusions from cases concerned only with a claim for an injunction'

As Lord Goff noted in that case there may be several occasions when a court may be willing to grant an injunction to prevent what 'might' be a nuisance or might become a nuisance on the basis that prevention is better than cure. However that did not mean that the same behaviour necessarily gave rise to a claim for damages. His call for courts to be 'on guard' is clearly even more relevant in considering the interrelationship of civil and criminal public nuisance. If something was done which would justify a prosecution for public nuisance then it would certainly also justify an Injunction but the reverse is not necessarily the case. In deciding whether conduct should be prosecuted as a public nuisance references to cases where public nuisance Injunctions have been granted must be approached with care. A charge of criminal public nuisance has to be proved beyond reasonable doubt whilst an application for a public nuisance Injunction can be granted on the basis that the court is satisfied that on a balance of probabilities it is 'just and expedient' to do so.

Public Nuisance Injunctions

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, Stoke on Trent City Council v B&Q (Retail) Ltd 1984 2 All ER 332.

Though actions for public nuisance have traditionally been brought by the Attorney General or by local authorities there is no absolute legal requirement for this. Actions based on public nuisance can be brought by individuals as occurred in the case of Halsey v Esso Petroleum Co Ltd. 2 All ER 145. The question is whether the individual bringing the action can show that they are so particularly affected by the public nuisance as to have the locus standi to in apply for an Injunction to prevent it. In the overwhelming majority of cases of public nuisance it is highly unlikely that any private individual would be able to establish that locus standi. Another possibility is an action brought by a tenants group or an organisation representing a particular racial group who are suffering racial harassment. The Law is increasingly coming to recognise the value and relevance of representative actions and in cases of public nuisance there seems no reason why such actions should not be allowed provided only that the particular individual or organisation can establish that they do represent all of the persons affected by the nuisance or 'a representative cross section' to use the words of Romer LJ in Att Gen v PYA Quarries Ltd [1957] 2 QB 184

A large proportion of rented accomodation is now managed by Housing Associations and Housing Co-operatives. If any such organisation had a particular neighbourhood or group of tenants that was being subjected to persistent nuisance behaviour either from an individual or from a gang then it is likely that they would have no difficulty in establishing the necessary locus standi for them to bring applications for public nuisance Injunctions. However breach of such an Injunction is not a criminal offence and therefore police cannot arrest a defendant who has breached a public nuisance Injunction. For that reason the use of public nuisance Injunctions is likely to decline in future with local authorities and Housing Associations choosing instead to apply for Anti-social Behaviour Orders or Housing Act Injunctions.

Public Harassment

In determining what type of behaviour would justify an Injunction or a prosecution for public nuisance the law has now to take account of the principles laid down in the Protection from Harassment Act 1997. Section 1 of the Act defines an unacceptable pattern of behaviour, section 2 makes it a criminal offence whilst section 3 makes it a statutory tort. Any behaviour which is contrary to the definition laid down in section 1 therefore falls within the public nuisance definition of being 'an act not warranted by law' If the course of conduct complained of causes 'harassment alarm or distress' as defined in section 7(2) of the Act then it 'endangers comfort' and if the effect of the behaviour is, for example, to prevent the harassed person from feeling safe in going outside their own home then it 'obstructs the exercise or enjoyment of rights common to all Her Majestys Subjects'.

The remedies in the protection from harassment act are primarily, but not exclusively, aimed at situations concerning harassment by an individual on another individual. However it is not uncommon for cases of harassment to occur where there is more than one person affected by harassment and where there is more than one offender. Racial harassment particularly often involves gangs continuing a campaign. There are several cities in Britain where day to day random harassment of inhabitants of a neighbourhood occures or where the particular behaviour of a group is harassing by its nature involving noise, profanity and aggression towards anyone who tries to intervene. In these cases the individual offences are often minor when viewed on their own and prosecution for them achieves little because the real problem is the cumulative effect of the behaviour not the individual incidents.

On a large scale the problems of dealing with these situations mirror the problems police and courts had in dealing with 'stalking' prior to the 1997 act since stalkers often committed no real crime when their actions were looked at in isolation. It would now be possible to prosecute offenders for their individual acts of harassment but that could require a number of separate trials with each victim in the neighbourhood being the subject of a separate trial a somewhat complex and time consuming process carrying small penalties. However such a situation could potentially be dealt with by English law enforcement officials using the criminal law of public nuisance to deal with situations of public harassment.

Once the Police decide that they have such a situation with a recognisable group of offenders then they could be tempted to prosecute for the crime of 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.

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 surveillance to obtain video or photographic evidence would also probably be essential. 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. The police and CPS are likely to take the view that 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.

Whilst the Civil use of the Law of Public Nuisance is likely to decline in favour of other remedies it is probable that there will be continued use of the Criminal charge of Public Nuisance for many years to come