Public Nuisance—A Critical Examination

J. R. Spencer

doi:10.1017/S0008197300108347

Public Nuisance—A Critical Examination

Published online by Cambridge University Press: 16 January 2009

J. R. Spencer

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Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common cold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance. The definition of this offence, according to Archbold's Criminal Pleading and Practice, is as follows: “Every person is guilty of an offence at common law, known as public nuisance, who does an act not warranted by law, or omits 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.” The person who commits a public nuisance incurs liability to life imprisonment and unlimited fines. He can be made vicariously liable for the offence if it is committed by his servants. He can be ordered to stop it by an injunction, and made to pay damages in tort if it causes anyone loss. With such a broad concept in existence, backed with such broad remedies, what need have we of any other criminal offence?—or torts?—or remedies in administrative law?

Type: Articles
Information: The Cambridge Law Journal , Volume 48 , Issue 1 , March 1989 , pp. 55 - 84

DOI: https://doi.org/10.1017/S0008197300108347 [Opens in a new window]
Copyright: Copyright © Cambridge Law Journal and Contributors 1989

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^{page 55 note 1} 42nd ed., (1985), para. 27–44.

^{page 57 note 2} Glanvill, , De Legibus et Consuetudinibus Regni Angliae, ed. Hall, G. D. G. (1965)Google Scholar, lib. 13 cap. 33; translation by Fifoot, , History and Sources of the Common Law (1949), p. 11Google Scholar.

^{page 57 note 3} Ibid., cap. 36. For the early history of the Assize of Nuisance, and when it first was called this, see Loengard, Janet, “The Assize of Nuisance: Origins of an Action of Common Law” [1978] C.L.J. 144Google Scholar.

^{page 57 note 4} Bracton, De Legibus et Consuetudenibus Angliae, f. 232 (b); ed. Thome, Vol. 3, p. 191; Fifoot, , History and Sources of the Common Law (1949), pp. 18–19Google Scholar.

^{page 57 note 5} Aldred's Case (1611) 9 Co. Rep. f. 57b, 77 E.R. 816, Baker, and Milsom, , Souces of English Legal History (1986), p. 599Google Scholar, where the defendant had erected a pig-sty which blocked the plaintiff's windows and stank him out, “and at the assizes in Norfolk he was found guilty of both the said nuisances, and damages assessed.”

^{page 58 note 6} Item notandum quod poterit esse nocumentum iniuriosum propter communem et publicam utilitatem quod quidem non esset propter utilitatem privatum, ut si quis firmarverit piscariam vel stagnum habens praeda ex utraque parte aquae, cum fundus suus liber sit ex omni parte quod nihil debeat fundo vicino, subtus nec supra, per hoc licent damnum faciat vicinis, non tamen facit iniuriam: sed tamen propter publicam utilitatem quae privatae praeferetur sustinenda sunt haec ad tollendum publicum damnum. Bracton, ibid., f. 232b; Thome ed. (1977), vol. 3, p. 190.

^{page 58 note 7} Britton, lib. II ch. xxx cap. 8 (de nusaunses); ed. F. M. Nichols (1865), vol. I, p. 402.

^{page 58 note 8} Brooke's, Abridgment (1573)Google Scholar, f. 103b; Rolle's, Abridgment (1668), 138/139Google Scholar.

^{page 58 note 9} Blackstone, Comm., Bk. IV, ch. xiii. The case about keeping pigs in the street is Wigg, (1705) 2 Salk. 460, 91 E.R. 397; 2 Ld. Raym. 1163, 92 E.R. 269.

^{page 58 note 10} In Viner's Abridgement, 2nd ed. 1793, vol. 16, p. 19 title “nusance,” an attempt is made to distinguish between common and public nuisance. “Nuisance is threefold; 1. Publick or general. 2. Common. 3. Private, or special. Publick is that which is to the nuisance of the whole realm. Common is that which is to the common nusance of all passing by. Private is that which is to a house or mill & etc.” This is based on a statement in Coke's Institutes, vol. 2, p. 406; ch. 24, para. 6; but lawyers have generally used the terms public and common nuisance interchangeably.

^{page 59 note 11} See page 73 below.

^{page 59 note 12} See page 74 below.

^{page 59 note 13} The Order of Keeping a Court Leete, and Court Baron; with the charges appertayning to the sames; by Jonas Adams. Published by Thomas Orwin and William Kirkham, London 1593. See also Hudson, W., Leet Jurisdiction in the City of Norwich, Selden Society No. 5 (1892), especially xxxiv-xxxviiGoogle Scholar.

^{page 60 note 14} “A presentment was made in a leet for erecting a glass-house, which was said to be ad magnum nocumentum … But this presentment was clearly ill, because it was not ad commune nocumentum …“ Anon (1669) 1 Ventris 27, 86 E.R. 19.

^{page 60 note 15} Sheppard, William, The Court-Keeper's Guide, or a Plain and Familiar Treatise needful and useful for the help of many that are imployed in the keeping of Law-days, or courts Baron, 5th ed., 1662Google Scholar. From Rolle's, Abridgment (1668), p. 139Google Scholar, who cites the case of Brown (1634) Pasch. 10 Car. B.R., it seems that the courts condemned the subdivision of properties because they thought the impoverished inhabitants would catch the plague, not because they thought they were one.

^{page 61 note 16} Hudson, William, A Treatise of the Court of Star Chamber, (in Hargrave, Collectanea Juridica) (1792), vol. II, 1, 107Google Scholar: “Leaving now the particulars, I come to express the great and high jurisdiction of this Court, which, by the arm of sovereignty, punisheth errors creeping into the Commonwealth, which otherwise might prove dangerous and infectious diseases, and giveth life to the execution of laws, or the performance of such things as are necessary in the Commonwealth, yea although no positive law or continued custom of the common law giveth warrant to it.” Bagg's Case (1615) 11 Co. Rep. 93(b), at 98(a), 77 E.R. 1271, 1277. “And in this case, first, it was resolved that to this Court of King's Bench belongs authority, not only to correct errors in judicial proceedings, but other errors and misdemeanours extra-judicial, tending to the breach of peace, or oppression of the subjects, or to the raising of faction, controversy, debate, or to any manner of misgovernment; so that no wrong or injury, either public or private, can be done but it shall be here reformed and punished by due course of law.” Cf. Shaw v. D.P.P. [1962] A.C. 220, per Viscount Simonds at p. 268: “In the sphere of the criminal law I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.”

^{page 61 note 17} Taylor (1676) 1 Vent. 293, 86 E.R. 189.

^{page 61 note 18} Sedley 1 Sid. 168, 82 E.R. 1036, 17 St. Tr. 155.

^{page 61 note 19} Curl (1727) 2 Str. 788, 93 E.R. 849.

^{page 61 note 20} Dixon (1814) 3 M. & S. 12, 105 E.R. 516.

^{page 61 note 21} Manley [1933] 1 K.B. 529.

^{page 61 note 22} Crunden (1809) 2 Camp. 89, 170 E.R. 1091.

^{page 61 note 23} (1801) 2 East 5, 102 E.R. 269.

^{page 61 note 24} See note 17 above.

^{page 62 note 25} [1933] 1 K.B. 529.

^{page 62 note 26} (1814) 3 M. & S. 12,105 E.R. 516.

^{page 62 note 27} [1905] 2 K.B. 730. The defendant had conspired to obtain a passport by using false pretences.

^{page 62 note 28} Ibid., at p. 739–740.

^{page 62 note 29} Vol. V, p. 792.

^{page 62 mote 30} (1814) 3 M. & S. 67; 105 E.R. 536.

^{page 63 note 31} See Archbold, , Criminal Pleading and Practice (42nd ed., 1985), para. 27–62Google Scholar.

^{page 63 note 32} In Rolle's, Abridgment (1668)Google Scholar, under the general heading “indictment,” we find the heading “nusans,” and under this he assembles a heterodox collection of bits and pieces which the judges at one time or another had ruled were indictable offences at common law; concealment of treasure trove, digging up the wall of a church, making off with the property of a Royal foundation; and also stopping up the highway, put here I would guess not because there was any doubt that it was punishable, but because Rolle wanted to point out that it was punishable at Assizes or in the King's Bench as well as in the obsolescent court leet. In the chapter on indictments in Hawkins's Pleas of the Crown, the author writes: “As to the third point, viz., What matters are indictable: There can be no doubt, but that all capital crimes whatsoever, and also all kinds of inferior crimes of a public nature, as misprisions, and all other contempts, all disturbances of the peace, all oppressions, and all misdemeanours whatsoever of a publickly evil example against the common law, may be indicted; but no injuries of a private nature, unless they in some way concern the King” (my italics). This is much the same sort of language as lawyers use to distinguish between a public and a private nuisance. In East's Pleas of the Crown (1803) common nuisance at common law appears in a chapter XXII which is entitled “Malicious or Fraudulent Mischief.”

^{page 63 note 34} (1495) Y.B. Mich. 11 Hen. VII ff. 11–12, pl. 35. See SirFinch, H., Law (1678), bk. 4, p. 234Google Scholar: “Prerogative. He [the King] may licence things forbidden by the Statutes. As to coin money which is made Felony by statute, and was before lawful, for that is but malum prohibitum. But malum in se, as to levy a nusance in the Highway, he cannot licence to do: but when it is done he may pardon it.”

^{page 64 note 35} 18 Car. II cap. 2. See Edie, Carolyn A., The Irish Cattle Bills, Transactions of the American Philosophical Society (New Series), vol. 60, pt. 2 (1970)Google Scholar.

^{page 64 note 36} 19 Car. 2cap. 3 s. 3.

^{page 64 note 37} 9 & 10 Wil. III c. 7 s. 1 (1698).

^{page 64 note 38} 10 & 11 Wil. III c. 17 s. 1 (1699).

^{page 64 note 39} 6 Geo. I c. 18 s. 19 (1719).

^{page 64 note 40} An Act for the Better and More Easy Rebuilding of the Town of Blandford Forum, 5 Geo. II c. 16 s. 8. (I suspect the nuisance clause was put there, not because anyone really thought the King would dispense the citizens of Blandford from their statutory duty to tile their roofs, but because there was a similar clause in the Act for the rebuilding of London (see note 36 above).)

^{page 65 note 41} Sir Matthew Hale intended to write a book that was equally comprehensive, but his History of the Pleas of the Crown, which deals only with treasons and felonies, was as far as he got with the project before his death.

^{page 65 note 42} Thus we owe to his discussion of the crime of libel the definition of a defamatory statement as one which exposes a person to hatred, ridicule and contempt: 2nd ed. (1724), p. 193.

^{page 65 note 43} “… upon the whole, I apprehend that none of the authors before mentioned were so perfect, but that, by reducing all the laws under one general Scheme, they might generally be understood with much less difficulty than they have hitherto been.” (Hawkins, writing in the preface to the Pleas of the Crown).

^{page 65 note 44} See note 32 above.

^{page 66 note 45} 2nd ed. (1724), p. 197.

^{page 66 note 46} (1752) Amb. 158, 27 E.R. 105, sub nom. Anon. 3 Atk. 751, 26 E.R. 1230.

^{page 66 note 47} (1816) 19 Ves. Jun. 618, 34 E.R. 645.

^{page 66 note 48} (1811) 18 Ves. Jun. 212; 34 E.R. 297.

^{page 67 note 49} (1819) 2 Wils, Ch. 87; 37 E.R. 240.

^{page 67 note 50} Bush v. Western (1720) Prec. Ch. 530, 24 E.R. 237.

^{page 67 note 51} Above, note 46.

^{page 67 note 52} These are his words as reported in Amb. 158, 159–60, 27 E.R. 105, 106. The report in 3 Atk. 751, 26 ER 1230 is much briefer and less informative.

^{page 68 note 53} (1811) 18 Ves. Jun. 212, 34 E.R. 297.

^{page 68 note 54} (1819) 2 Wils. Ch. 87, 37 E.R. 240.

^{page 68 note 55} As in A.-G. v. Doughty (1752) 2 Ves. Sen. 453, 28 E.R. 290, where he unsuccessfully tried to restrain building works which would have spoilt the view from Gray's Inn.

^{page 68 note 56} The first reported case seems to be A.G. v. Richards (1788) 2 Anst. 603, 145 E.R. 980, but a series of unreported cases dating back to the time of Charles I were cited in Russell (1827) 6 B. & C. 566, 583, 108 E.R. 560, 566.

^{page 69 note 57} See Hudson, op cit. note 16, 134–137.

^{page 69 note 58} Edwards, , The Law Officers of the Crown (1964), ch. 6Google Scholar.

^{page 69 note 59} See Stephen, , History of the Criminal Law (1883), vol. 1, pp. 294Google Scholaret seq. This practice was severely curtailed by the decision in Labouchere (1884) 12 Q.B.D. 320. “Private informations” were finally abolished by the Administration of Justice Act 1938, s. 12.

^{page 69 note 60} See Lord Eldon's remarks in A.G. v. Johnson (1819) Wils. Ch. 87, 102; 37 E.R. 240, 246.

^{page 69 note 61} (1816), 19 Ves. Jun. 618, 34 E.R. 645.

^{page 69 note 62} [1903] 1 Ch. 110, [1906] A.C. 1.

^{page 70 note 63} Anon, 12 Mod. Rep. 559, 88 E.R. 1518.

^{page 70 note 64} R. v. Medley (1834) 6 C. & P. 292, 172 E.R. 1246.

^{page 70 note 65} R. v. Birmingham and Gloucester Ry. (1842) 3 Q.B. 224, 114 E.R. 492; R. v. Great North of England Railway (1846) 9 Q.B. 315, 115 E.R. 1294. The route by which the courts reached this conclusion is described in Kenny's Outlines of Criminal Law, 18th ed., para. 50.

^{page 71 note 66} Salmon v. Hamborough Co. (1671) 1 Chancery Cases 204, 22 E.R. 763.

^{page 71 note 67} (1856) 2 Jur. N.S. 180.

^{page 71 note 68} (1858) 4 K. & J. 528; 70 E.R. 220.

^{page 71 note 69} Byers (1907) 71 J.P. 205. The prosecutor appears to have suspected the defendant caused the body to be dead, but was unable to prove it. The public nuisance prosecution failed for want of proof that more than a handful of people had been offended by the smell of burning flesh; but the defendant was eventually convicted and sent to prison for disposing of a body with the intention of preventing an inquest.

^{page 72 note 70} Clarke (1883) 15 Cox 171. The defendant was convicted.

^{page 72 note 71} Mutters (1864) Le. & Ca. 491, 169 E.R. 1485.

^{page 72 note 72} (1854) 2 W.R. 330, 331.

^{page 72 note 73} [1900] 1 Q.B. 78.

^{page 72 note 74} [1903] 1 Ch. 101.

^{page 73 note 75} A.-G. v. Sharp [1931] 1 Ch. 121; A.-G. v. Harris [1961] 1 Q.B. 74.

^{page 73 note 76} Stoke-on-Trent City Council v. B. & Q. Retail [1984] A.C. 754.

^{page 73 note 77} Baker, J. H., An Introduction to English Legal History (2nd ed., 1979), pp. 361–362Google Scholar; Newark, F. H., “The Boundaries of Nuisance,” (1949)Google Scholar 65 LQR 480, 483 et seq.

^{page 73 note 78} (1445) Y. B. 33 Hen. 6. Trin. pl. 10; (1465) Y. B. Pasch. 5 Ed. IV 2, pl. 4.

^{page 73 note 79} Y. B. Mich, 27 Hen. 8, f. 27 pl. 10. Kiralfy, , The Action on the Case (1951)Google Scholar identifies the case as Southall v. Dagger, C.P. roll Hil. 26 Hen. VIII m. 280, but Professor Baker doubts the identification.

^{page 73 note 80} F. H. Newark, op. cit., p. 483. “But this is no reason at all. If a hundred private wrongs have been done a hundred private actions may well be brought.”

^{page 74 note 81} Fowler v. Sounders (1617) Cro. Jac. 446, 79 E.R. 382; Iveson v. Moore (1699) 1 Lord Raym. 486, 91 E.R. 1224.

^{page 74 note 82} Fowler v. Sounders, see previous note.

^{page 74 note 83} Couch v. Steel (1854) 3 El. & B1. 402, 118 E.R. 1193.

^{page 74 note 84} See Fridman, , Definition of Particular Damage in Nuisance, (1953)Google Scholar 2 (W.A.) Annual 1. Rev. 490. Kodalinye, G., Public Nuisance and Particular Damage in Modern Law, (1986)Google Scholar 2 Legal Studies 182.

^{page 74 note 85} As in Fowler v. Saunders, above, note 80, where the plaintiff hurt himself when his horse fell over some logs left on the public highway.

^{page 74 note 86} As in Halsey v. Esso Petroleum [1961] 1 W.L.R. 683, where acid smuts damaged the plaintiffs car.

^{page 74 note 87} Benjamin v. Storr (1874) L.R. 9 C.P. 400.

^{page 74 note 88} Tate & Lyle Food Distribution Ltd. v. G.L.C. [1983] 2 A.C. 509.

^{page 74 note 89} Winterbottom v. Lord Derby (1867) L.R. 2 Ex. 316 appears to deny this, but it was accepted in the Irish case of Smith v. Wilson [1903] 2 I.R. 45, and by the Supreme Court of Victoria in Walsh v. Irvin [1952] V.L.R. 361.

^{page 75 note 90} Hickey v. Electric Reduction Company of Canada Ltd. (1970) 21 D.L.R. (2nd) 368; cf Stein and Tessler v. Gonzales (1985) 58 B.C.L.R. 10, where the owners of a hotel tried to sue some prostitutes whose activities in the area were reducing the value of their hotel; the action failed because the plaintiffs were suffering the same loss as everyone else in the area.

^{page 75 note 91} Dymond v. Pearce [1972] 1 Q.B. 496.

^{page 75 note 92} Trevett v. Lee [1965] 1 W.L.R. 113; Dymond v. Pearce, see previous note.

^{page 75 note 93} Caminer v. Northern Investment Trust [1951] A.C. 88.

^{page 76 note 94} Wringe v. Cohen [1940] 1 K.B. 229, 233 per Atkinson J.; Mint v. Good [1951] 1 K.B. 517, at p. 526 per Denning L.J.

^{page 77 note 95} [1978] Crim. L.R. 435.

^{page 77 note 96} His punishment is not reported.

^{page 77 note 97} [1964] 2 Q.B. 315.

^{page 77 note 98} [1964] Crim. L.R. 303.

^{page 77 note 99} Clark, note 97 above. Fortunately for him the Court of Criminal Appeal quashed his conviction for a misdirection.

^{page 77 note 1} (1980)70 Cr.App.R. 295.

^{page 77 note 2} The Times, 17 December 1971.

^{page 78 note 3} [1975] 1 W.L.R. 1379. The conviction was quashed on appeal because of a misdirection as to the degree of public disturbance which the crime of public nuisance requires.

^{page 78 note 4} Criminal Law Act 1977, s. 51.

^{page 78 note 5} 1984 Current Law Yearbook No. 2471.

^{page 78 note 6} J. N. Spencer (no relation!) (1984) 148 J.P.N. 679; I attacked the suggestion in (1984) 148 J.P.N., and he defended it at (1985) 149 J.P.N. 678. In Sykes v. Holmes and another [1985] Crim. L.R. 791 some youths who sniffed glue in a school playground after hours were successfully prosecuted for the statutory offence of causing a nuisance to persons lawfully using school premises contrary to s.40(l) of the Local Government (Miscellaneous Provisions) Act 1980.

^{page 78 note 6A} Silveire, Independent, 7 February 1989.

^{page 78 note 7} I heard him do this in a speech to Cambridge University Law Society in 1965.

^{page 79 note 8} Carlile (1834) 6 C. & P. 628, 636, 172 E.R. 1397. The case was that his display attracted a crowd of the “lowest of the low,” who formed a crowd which blocked the pavement. His argument that an even bigger crowd habitually blocked the pavement outside St. Dunstan's church to see a mechanical effigy strike a bell on the hour received no answer!

^{page 79 note 9} See Clark and Moule, above, notes 96 and 97.

^{page 79 note 10} Williams, Glanville, The Criminal Law, the General Part (2nd ed., 1961) ch.12Google Scholar; Davies, Seaborne, The House of Lords and the Criminal Law (1961)Google Scholar VI Jo. S.P.T.L. (N.S.) 104. Brownlie, and Williams, , Judicial Legislation in Criminal Law [1964]Google Scholar Can. Bar Rev. 561.

^{page 79 note 11} Bhagwan v. D.P.P. [1972] A.C. 60; Knuller v. D.P.P. [1973] A.C. 435.

^{page 79 note 12} D.P.P. v. Withers [1975] A.C. 842.

^{page 80 note 13} Local Government Act 1972, s.222. Under this section the local authority may apply for an injunction to prevent any crime being committed in their area, if they consider it to be in the interests of the local community to apply for one, and it is not limited to the crime of public nuisance. In Stoke-on-Trent City Council v. B. & Q. (Retail) Ltd. [1984] A.C. 754 the local authority obtained an injunction against a shopkeeper who broke the Sunday trading laws and was undeterred by the threat of prosecution.

^{page 81 note 14} Since local authorities were no longer required to join the Attorney-General in a relator action, leaving only private citizens to seek to become relators, relator actions for public nuisance have became extremely rare. The Attorney-General informed me that in the five years between 1973 and the end of 1982 he had received only two applications arising out of alleged public nuisances, one of which was withdrawn.

^{page 81 note 15} [1957] 2 Q.B. 169. This was a relator action, because the real plaintiff was the local authority, and it took place before the Local Government Act 1972 s.222.

^{page 82 note 16} The Wagon Mound (No.2) [1967] A.C. 617.

^{page 82 note 17} [1972] 1 Q.B. 496.

^{page 82 note 18} Tarry v. Ashton; (1876) 1 Q.B.D. 314; Wringe v. Cohen [1940] 1 K.B. 229; Mint v. Good [1951] 1 K.B. 517.

^{page 83 note 19} Chapman v. Honig [1963] 2 Q.B. 502; Lonrho Ltd. v. Shell Petroleum Co. Ltd. [1982] A.C. 173.

^{page 83 note 20} Since the Powers of Criminal Courts Act 1973, s.35, the criminal courts have had the power to make a compensation order against the defendant in favour of any person who has suffered loss as the result of his crime, and the Criminal Justice Act 1988 amends this Act to require them to give reasons whenever they sentence an offender without making use of it. By this means the criminal defendant can be ordered to compensate for all kinds of loss resulting from his crime, including losses that would be irrecoverable in the civil courts: Chappel (1984) 80 Cr. App.R. 31, where a company director whose crime of recklessly making false VAT returns prevented the Customs and Excise collecting £9,635 in VAT from his company before it went into liquidation, and the Court of Appeal held that a compensation order was rightly made against him for this sum, although the civil liability was not his but the company's. Furthermore, there is no formal upper limit to the size of the award (although the criminal courts do not award sums greater than they think the defendant is able to pay). All this makes it very difficult to see why the civil courts should be reluctant to accept the general principle that damages are recoverable for the consequences of a criminal offence.

^{page 83 note 21} As in Tate & Lyle Food Distribution Ltd. v. G.L.C. [1983] 2 A.C. 509.

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