Simplification of the Criminal Law: Public Nuisance and Outraging Public Decency

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

Simplifying the old common law offences of public nuisance and outraging public decency.

Download the report

Download the consultation

The problem

Public nuisance is a common law offence involving environmental danger or loss of amenity or offensive public behaviour.

The related common law offence of outraging public decency involves indecent actions or displays that may cause offence to members of the public.

These two common law offences were unclear and ill-defined.

Public nuisance traditionally dealt with environmental nuisance such as noise, smells and obstruction. But its focus has shifted to more general forms of public misbehaviour. This brings a wider range of potential offenders into its scope.

Outraging public decency is a related offence which criminalises behaviour or displays which are lewd, obscene or disgusting and take place in public.

The project

As part of a drive towards criminal law simplification these old common law offences were reviewed to consider whether they are still necessary. And if so, how they could be restated in statute in a simpler and more comprehensible form.

We considered the fault elements of both offences, and the relationship of public nuisance to statutory environmental and public order offences.

In March 2010 we published a consultation paper looking at the issue. In our consultation paper we provisionally proposed that both offences should be replaced in statute

Our recommendations

For public nuisance, we recommended:

• That it was made a statutory offence. It should cover any conduct which endangers the life, health, property or comfort of a section of the public. Or obstructs them in the exercise of their rights.
• The new public nuisance offence would require that the defendant either intended or was reckless in the act.

For outraging public decency, we recommended:

• That is was made a statutory offence. It should cover any act or display of an obscene or disgusting nature sufficient to outrage contemporary standards of decency. That is provided it occurs within a place accessible to or within view of the public.
• This new offence would require that the defendant either knew that the act obscene or disgusting.
• The common law offence of conspiracy to outrage public decency is unnecessary and should be abolished without replacement.

Result

In June 2015 we published our final report. Our recommendation to codify public nuisance was implemented in the Police, Crime, Sentencing and Courts Act 2022, s 78. The Law Commission also submitted evidence to the Public Bill Committee during the passage of the Bill.