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Abolishing the Crime of Public Nuisance and Modernising That of Public Indecency

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Abolishing the Crime of Public Nuisance and Modernising That of Public Indecency International Law Research; Vol. 6, No. 1; 2017 ISSN 1927-5234 E-ISSN 1927-5242 Published by Canadian Center of Science and Education Abolishing the Crime of Public Nuisance and Modernising That of Public Indecency Graham McBain1,2 1 Peterhouse, Cambridge, UK 2 Harvard Law School, USA Correspondence: Graham McBain, 21 Millmead Terrace, Guildford, Surrey GU2 4AT, UK. E-mail: [email protected] Received: November 20, 2016 Accepted: February 19, 2017 Online Published: March 7, 2017 doi:10.5539/ilr.v6n1p1 URL: https://doi.org/10.5539/ilr.v6n1p1 1. INTRODUCTION Prior articles have asserted that English criminal law is very fragmented and that a considerable amount of the older law - especially the common law - is badly out of date.1 The purpose of this article is to consider the crime of public nuisance (also called common nuisance), a common law crime. The word 'nuisance' derives from the old french 'nuisance' or 'nusance' 2 and the latin, nocumentum.3 The basic meaning of the word is that of 'annoyance';4 In medieval English, the word 'common' comes from the word 'commune' which, itself, derives from the latin 'communa' - being a commonality, a group of people, a corporation.5 In 1191, the City of London (the 'City') became a commune. Thereafter, it is usual to find references with that term - such as common carrier, common highway, common council, common scold, common prostitute etc;6 The reference to 'common' designated things available to the general public as opposed to the individual. For example, the common carrier, common farrier and common innkeeper exercised a public employment and not just a private one. Today, the word 'public' tends to be used instead of the word 'common.' 1 See generally, GS McBain, Our Criminal Law should only be 200 Years out of date - and it should be Consolidated. Review of European Studies (2014), vol 6, no 2, pp 1-35. 2 R Kelham, A Dictionary of the Norman or Old French Language (1843)(nuisement) 'nuisance, annoyance'. Also, (nuire, nuyre) 'hurt, injure.' N Bailey, An Universal Etymological English Dictionary(nuisance) 'something noxious or offensive.' Also (noyance) 'harm, nuisance.' J Cowell, The Interpreter (1st ed, 1607)(nusance)(nocumentum)'commeth of the French nuire i[d est] nocere.' It would seem clear from the Liber Albus (see n 64), that the words 'nuisance' and 'annoyance' were (legally) treated as synonyms in medieval times, with their variant spellings (anoesance, anoesaunce, anosaunce, anusance, anusaunce, nosance, nosaunce etc - see Munimenta, n 65, vol 3, p 292). CT Onions (ed), The Oxford Dictionary of English Etymology (OUP, 1966)(nuisance) ' injury, harm...injurious or obnoxious thing...source of annoyance...OF [Old French](now arch) nuisance hurt, f[rench]. nuis, stem of nuire injure: L[atin] nocere...' 3 JR Spencer, Public Nuisance - A Critical Examination [1989] CLJ 55 at p 56 'The word 'nuisance' - spelt 'nusans' until the spelling was deliberately archaised in the eighteenth century - comes from the Norman-French word 'nuisance', which in turn comes from the dog-Latin nocumentum. The word originally meant no more than 'harm.' WO Russell, A Treatise on Crimes and Misdemeanors (1sted, 1819; last ed (12thed), 1964), last ed, vol 2, p 1387 'Nuisance (nocumentum), or annoyance, means anything which works hurt, inconvenience or damage.' 4 Oxford English Dictionary (‘OED’)(nuisance) '1. Injury, hurt, harm, annoyance. 2. Anything injurious or obnoxious to the community or to the individual as a member of it (esp. as an owner or occupier of property), for which some legal remedy might be found.' S Johnson, A Dictionary of the English Language (1st ed, 1755)(nuisance) ‘1. Something noxious or offensive. 2. [in law] Something that incommodes the neighbourhood.' 5 See GS McBain, Time to Abolish the Common Carrier [2005] JBL 545 at p 548. For various instances of the word 'common' see Stroud, Judicial Dictionary of Words and Phrases (Sweet & Maxwell, 2000); Words and Phrases Legally Defined (Butterworths, 1988) and D Walker, The Oxford Companion to Law (Clarendon Press, 1980). 6 e.g. Statute of Marlborough 1267 c 15 'It shall be lawful for no man from henceforth for any manner of cause, to take distress out of his fee, nor in the king's highway, nor the common street, but only to the king or his officers having special authority.' (italics supplied). See also Spencer, n 3, p 58. 1 ilr.ccsenet.org International Law Research Vol. 6, No. 1; 2017 From early times, a legal distinction was made between common (public) and private nuisance.7 The former is a crime, the latter not. Archbold, Criminal Pleading, Evidence and Practice (2016) states: Public nuisance is an offence at common law. 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 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.8 In a Report issued by the Law Commission (the 'LC') in 2015 - entitled Simplification of Criminal Law: Public Nuisance and Outraging Public Decency 9 - the LC recommended that public nuisance and outraging public decency become statutory crimes. The purpose of this article - while not dis-agreeing that outraging public decency should become a statutory crime - is to argue that public nuisance should be abolished. Indeed, the reason why this common law offence has not been abolished earlier is that its history is very confused and many legal writers (and the courts) have based their analysis on Hawkins, A Treatise of Pleas of the Crown (1st ed, 1716-21)10 although his definition - and analysis - of the crime was very subjective and he did not investigate the earlier law in any detail. As to this: Public Nuisance - Created by Legal Writers. In early times, various specific nuisances were crimes. However, it is unclear whether there ever was a generic crime of 'common nuisance'. That is, no court or judge seems to have created it. Rather, it is likely that it was created by legal writers such as Hawkins (1716-21)11 who 'packaged' together various distinct criminal nuisances under the generic title of 'common nuisance' - something he also did with the crime of 'contempt of the sovereign' for example.12 Thus, the provenance of public nuisance is suspect. Not a common law crime. A common textbook crime; Few Common Law Nuisances. Even if public nuisance was a legitimate common law creation there seem to have been few instances of it in early times. What has often been overlooked in the analysis of this crime is that - from early times (from 1197 at least) - there were Assizes of Ale, Bread, Wine, Cloth, Buildings, the Pillory etc. They stipulated statutory nuisances, not common law ones (see 6). Also overlooked are Ordinances for the City originating from the time of Edward I (1272-1307) (see 11) which were, probably, based on even earlier legislation, now lost. These stipulated statutory nuisances. However, there is no evidence that writers such as Hawkins had much knowledge of (or interest in) early City law.13 Therefore, he overlooked this. As it is, it is asserted that most nuisances, pre-Hawkins, were statutory;14 Hawkins' Packaging. Hawkins - in his description of 'common nuisance' in 1716 - included distinct common law crimes. Thus, he included crimes of: (a) a common innkeeper refusing to provide a traveller with board and lodging; and (b) managing a disorderly house (brothel) (see 17). However, these did not require proof of nuisance to the public as such (nor did the crime of selling, or offering for sale, unwholesome food). Hawkins also included: (c) houses where gaming was carried on; (d) theatres; and (e) houses which harboured thieves or prostitutes. These he did by way of their being analogous to maintaining a disorderly house. However, in any case, (c)-(e) were, soon, superceded by legislation. Also, other crimes asserted to be 'common nuisances' were gathered into the Metropolitan Police Act 1839 (the '1839 Act'). which covered the Metropolitan Police District (the 'MPD') and the Town Police Clauses Act 1847 (the '1847 Act') which covered urban districts (see 21). These Acts are still extant.15 Various legal works failed to sufficiently note this transition to legislation; 7 Russell, n 3, vol 2, p 1387 'Nuisances are of two kinds: public or common nuisance, which materially affects the public, and is a substantial annoyance to all the Queen's subjects; and private nuisance which may be defined as anything which causes material discomfort and annoyance, to a man in the use for ordinary purposes of his house or property. Public or common nuisances, as they affect the whole community in general, and not merely an individual, form the subject of public remedies and do not give a cause for private suit; for it would be unreasonable to multiply suits by giving every man a separate remedy for what damnifies him in common only with the rest of the lieges [subjects].' 8 Archbold, Criminal Pleading, Evidence and Practice (Thomson Reuters, 2016), para 31-40. 9 Law Commission, no 358 ('LC 358'). 10 W Hawkins, A Treatise of Pleas of the Crown (1st ed, 1716-21; last ed 1824). 11 Blackstone (in 1765-9, see n 47) and R Burn, The Justice of the Peace and Parish Officer (1st ed, 1755; last ed (30th ed), 1869) closely followed Hawkins and his categorisation, without checking whether it was an accurate, or useful, one. 12 See 17. 13 The City material was, principally, in latin or anglo-norman (law french).
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