House of Lords
|Session 2005 - 06|
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Regina v. Rimmington (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) and Regina v. Goldstein (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
LORD BINGHAM OF CORNHILL
1. These appeals, heard together, raise important and difficult questions concerning the definition and ingredients, today, of the common law crime of causing a public nuisance. The appellants contend that, as applied in their cases, the offence is too imprecisely defined, and the courts' interpretation of it too uncertain and unpredictable, to satisfy the requirements either of the common law or of the European Convention on Human Rights. A question also arises on the mens rea which must be proved to establish the offence.
2. The facts of the two cases are quite different. Mr Rimmington was charged in an indictment containing a single count of public nuisance, contrary to common law. The particulars were that he
No evidence has yet been called or facts formally admitted, but it is not effectively in dispute that Mr Rimmington sent the packages listed in the schedule to the identified recipients, some of them prominent public figures, between the dates specified. The communications were strongly racist in content, crude, coarse, insulting and in some instances threatening and arguably obscene. When arrested in June 2001 Mr Rimmington suggested that his campaign had been prompted by a racially-motivated assault upon him by a black male in 1992: he had decided to retaliate by causing "them" mental anguish. The indictment preferred against him was challenged at the Central Criminal Court before Leveson J, who held a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996 to resolve the issues of law raised by the defence. He ruled that the indictment charged Mr Rimmington with an offence known to the law and that the prosecution was not an abuse of process because brought inconsistently with articles 7, 8 or 10 of the European Convention. Mr Rimmington's appeal to the Court of Appeal (Criminal Division) against that decision was heard by Latham LJ, Moses J and Sir Edwin Jowitt with that of Mr Goldstein, and was dismissed:  EWCA Crim 3450,  1 WLR 2878,  1 Cr App R 388.
3. In the proceedings against Mr Rimmington so far, he has been anonymised as "R" in the title of the case. Where a preparatory hearing is likely to be followed by a substantive trial and there is a risk that the trial may be prejudiced by reporting of the preparatory hearing, there may be very good reason to defer full reporting of the preparatory hearing, as is recognised by section 37 of the 1996 Act. But there is no statutory warrant for withholding the name of a defendant (see section 37(9)), and in the present case there is no reason why reporting should be restricted. I would accordingly order under section 37(5) of the Act that subsection (1) shall not apply to this appeal. There should be no resort to anonymity in criminal cases without good reason and statutory authority.
4. Mr Goldstein was charged in an indictment containing one count of public nuisance contrary to common law. The particulars were that he
Mr Goldstein, an ultra-orthodox Jew, is a supplier of kosher foods in Manchester. He bought supplies from the company of an old friend in London, Mr Abraham Ehrlich, with whom he had a bantering relationship. Mr Goldstein owed Mr Ehrlich a significant sum of money, which the latter had pressed him to pay. Mr Goldstein accordingly put the cheque in an envelope (addressed to Ibrahim Ehrlich) and included in the envelope a small quantity of salt. This was done in recognition of the age of the debt, salt being commonly used to preserve kosher food, and by way of reference to the very serious anthrax scare in New York following the events of 11 September 2001, which both men had discussed on the telephone shortly before. The inclusion of the salt was intended to be humorous, and Mr Ehrlich gave unchallenged evidence at trial that had he received the envelope he would have recognised it as a joke. But the envelope did not reach him. In the course of sorting at the Wembley Sorting Office some of the salt leaked onto the hands of a postal worker who understandably feared it might be anthrax and raised the alarm. The building, in which some 110 people worked, was evacuated for about an hour, the second delivery for that day was cancelled and the police were called. On inspecting the envelope the police were satisfied that the substance was salt. Mr Goldstein pleaded not guilty before a judge (His Honour Judge Fingret) and jury in the Crown Court at Southwark but on 3 October 2002 he was convicted. He was sentenced to a Community Punishment Order of 140 hours, and ordered to pay £500 compensation and £1850 towards the costs of the prosecution. His appeal against conviction was heard and dismissed with that of Mr Rimmington.
5. The origins and nature of nuisance have been the subject of detailed scholarly research which need not for present purposes be rehearsed: see Winfield, "Nuisance as a Tort", (1932) 4 C LJ 189; F H Newark, "The Boundaries of Nuisance", (1949) 65 LQR 480; J Loengard, "The Assize of Nuisance: Origins of an Action at Common Law"  CLJ 144. It seems clear that what we would now call the tort of private nuisance, recognised in the Assize of Nuisance, provided a remedy complementary to that provided by the Assize of Novel Disseisin. As Holdsworth succinctly puts it (A History of English Law, 5th ed (1942), vol III, p 11),
By the 15th century an action on the case for private nuisance was recognised. Thus the action for private nuisance was developed to protect the right of an occupier of land to enjoy it without substantial and unreasonable interference. This has remained the cardinal feature of the tort, as recently affirmed by the House in Hunter v Canary Wharf Ltd  AC 655. The interference complained of may take any one of many different forms. What gives the tort its unifying feature (see Fleming, The Law of Torts, 9th ed, (1998), p 457) is the general type of harm caused, interference with the beneficial occupation and enjoyment of land, not the particular conduct causing it.
6. It became clear over time that there were some acts and omissions which were socially objectionable but could not found an action in private nuisance because the injury was suffered by the local community as a whole rather than by individual victims and because members of the public suffered injury to their rights as such rather than as private owners or occupiers of land. Interference with the use of a public highway or a public navigable river provides the best and most typical example. Conduct of this kind came to be treated as criminal and punishable as such. In an unpoliced and unregulated society, in which local government was rudimentary or non-existent, common nuisance, as the offence was known, came to be (in the words of J R Spencer, "Public Nuisance - A Critical Examination",  CLJ 55, 59) "a rag-bag of odds and ends which we should nowadays call 'public welfare offences'". But central to the content of the crime was the suffering of common injury by members of the public by interference with rights enjoyed by them as such. I shall, to avoid wearisome repetition, refer to this feature in this opinion as "the requirement of common injury".
7. Unusually, perhaps, conduct which could found a criminal prosecution for causing a common nuisance could also found a civil action in tort. Since, in the ordinary way, no individual member of the public had any better ground for action than any other member of the public, the Attorney General assumed the role of plaintiff, acting on the relation of the community which had suffered. This was attractive, since he could seek an injunction and the abatement of the nuisance was usually the object most desired: see Spencer, op. cit., pp 66-73. It was, however, held by Fitzherbert J, as early as 1536 (YB 27 Hy VIII. Mich. pl.10) that a member of the public could sue for a common or public nuisance if he could show that he had suffered particular damage over and above the ordinary damage suffered by the public at large. To the present day, causing a public nuisance has been treated as both a crime and a tort, the ingredients of each being the same.
The crime of public nuisance
8. The House was very helpfully referred to a number of authoritative statements on and definitions of the crime of public nuisance. The earliest of these was Hawkins, A Treatise of the Pleas of the Crown (1716), Book 1, Chap. LXXV, where he raised as a first question "What shall be said to be a Common Nuisance", and began his answer
He gave examples. In his Commentaries on the Laws of England (Book III, 1768, Chapter 13, p 216) Blackstone distinguished between public or common nuisances, "which affect the public, and are an annoyance to all the king's subjects" and private nuisances, which he defined as "any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another". In Book IV (1769, Chapter 13, p 167) he explained further:
9. In 1822, in the first edition of his long-lived work then called A Summary of the Law Relative to Pleading and Evidence in Criminal Cases, JF Archbold published a precedent of an indictment for carrying on an offensive trade. The requirement of common injury (as I have called it) was recognised in the particulars:
He referred to such other common nuisances as using a shop in a public market as a slaughter house, erecting a manufactory for hartshorn, erecting a privy near the highway, placing putrid carrion near the highway, keeping hogs near a public street and feeding them with offal, keeping a fierce and unruly bull in a field through which there was a footway, keeping a ferocious dog unmuzzled and baiting a bull in the King's highway. He went on to deal with such common nuisances as keeping a disorderly house and a common gaming house, although these became statutory offences the same year (3 Geo IV, Cap CXIV).
10. It seems likely that the draftsman of section 268 in chapter XIV of the Indian Penal Code (Act XLV of 1860) intended to summarise the English common law on public nuisance as then understood.
In the draft Code annexed to their Report by the Criminal Code Bill Commissioners in 1879, the following proposals were made:
In A Digest of the Criminal Law (1877, Chapter XIX, p 108) Sir James Stephen defined a common nuisance as
In the eighth and ninth editions of the work, published in 1947 and 1950 respectively, this definition remained unchanged. The definition to be found in para 31-40 of the 2005 edition of Archbold (Criminal Pleading, Evidence and Practice, save in its reference to morals, reflects the effect of these definitions:
11. In a number of countries where the law has derived from English sources, an offence of common or public nuisance, having characteristics similar to those defined above, is to be found. Thus in Canada, where common law offences have been abolished, section 180 of the Criminal Code now provides:
Section 230 of the Queensland Criminal Code provides:
To similar effect is the Tasmanian Criminal Code Act 1924, section 140: