Abstract
Keywords
The appellants were part of the Just Stop Oil (JSO) campaign. On the day before the British Grand Prix Formula 1 motor race held at the Silverstone circuit on 3 July 2022, they had recorded a video in which it was stated that they intended to occupy part of the race track during the race, dressed in distinctive orange JSO t-shirts and holding a JSO banner, in order to draw public attention to their campaign. Having purchased tickets to enter the circuit, which was situated on private land, the appellants changed into their t-shirts. They were also in possession of cable ties and superglue. There was a serious collision during the first lap of the race which involved 3 of the 20 cars taking part. This caused red flags to be displayed which signalled to the drivers that they were to reduce their speed, not overtake and enter the pits at the first opportunity.
Whilst the 17 remaining cars were still on the circuit and most were passing along the Wellington Straight, the appellants climbed fences in order to enter the prohibited area. Although one of them was pulled back by a race marshal, the others succeeded in reaching the track itself. After 15 of the cars had passed, they sat down in a line, obstructing about half the width of the track. CCTV footage captured the remaining two cars passing the appellants. Within a minute, marshals removed them from the track and they were arrested.
In respect of this incident, the appellants were charged with conspiracy to cause a public nuisance (count 1), and causing a public nuisance contrary to s.78(1) and (4) of the Police, Crime, Sentencing and Courts Act 2022. At their trial heard in the Northampton Crown Court, the prosecution elected to offer no evidence on count 1. The particulars of count 2 alleged that the six accused: ‘… without reasonable excuse did an act, namely entered the Silverstone motor circuit during a Formula 1 race and that created a risk of serious harm to a section of the public, intending or being reckless that it would have such a consequence’.
At the conclusion of the prosecution case, all six accused made submissions of no case to answer. It was their contention that on the basis of the common law test set down in R v Rimmington [2006] 1 AC 459, no reasonable jury could be satisfied on the evidence that they had created a risk of serious harm to a section of the public. The appellant (B) who had been stopped by a marshal additionally submitted that no reasonable jury could be satisfied that he was guilty as a secondary party. These submissions were rejected. At the conclusion of their trial, the jury returned guilty verdicts. Subsequently, three of the appellants were sentenced to suspended sentences of imprisonment, whilst the others had community orders imposed upon them. Five of the six protestors appealed against their convictions. They did so on the basis that the trial judge had been wrong to refuse their submissions of no case to answer. It was further argued that he had failed to give any sufficient or adequate direction to the jury as to what amounted to ‘a section of the public’ for the purposes of the s.78 offence. B renewed his application for leave to appeal against conviction on the ground that there was insufficient evidence to establish secondary liability.
Where an offender creates a risk of serious harm to only a single person, it would not be possible to find a risk to ‘a section of the public’. Whilst there was no minimum number, as a matter of common sense the greater the number of persons placed at risk, the easier it would be to conclude that they could properly be regarded as ‘a section of the public’. The phrase simply referred to a group of persons within a larger group or body of persons. It would be a question of fact in each case whether the smaller group could fairly be described as ‘a section of the public’.
Commentary
Introduction
The long-established common law offence of public nuisance was notoriously broad, covering a wide range of activities which did not fall foul of existing penal provisions: see the opening passage of JR Spencer's ‘Public Nuisance – A Critical Examination’ (1989) 48 CLJ 55. Recently, however, it was expressly abolished by the Police, Crime, Sentencing and Courts Act 2022, and replaced by a statutory offence: see s.78(1) and (6). This reflected a recommendation previously made by the Law Commission in Simplification of Criminal Law – Public Nuisance and Outraging Public Decency (2015) Law Com No.358, at paras. 3.33 and 4.1. To date, what little case law there has been on s.78 has largely related to the actions of protestors: see, for example, R v Trowland [2023] EWCA Crim 919. Indeed, the present appeals were brought by the first defendants to have been convicted of a s.78 offence.
Past Authority
At their original trial, and in the present appeal, counsel for the appellants relied on two authorities in support of the argument that on the evidence, no reasonable jury could be satisfied that they had created a serious risk of harm to a section of the public, as required by s.78(1)(b)(i) of the 2022 Act. The two cases in question were AG v PYA Quarries [1957] 2 QB 169 and R v Rimmington [2006] 1 AC 459. In the former, Romer LJ had observed that ‘any nuisance is “public” which materially affects the comfort and convenience of life of a class of Her Majesty's subjects’, and that ‘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’ (at 184). In the same case, Denning LJ (as he then was) also declined to place a number on what constituted a ‘class’ for present purposes. Instead, he remarked: ‘… 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’ (at 191).
It will be recalled that Rimmington was a case involving the sending of in excess of 500 separate letters and packages containing racially offensive material to ethnic minority citizens. During the course of his judgement in that case, Lord Bingham quoted from the judgement in R v Madden [1975] 1 WLR 1379, where James LJ had observed: ‘It is quite clear that, for a public nuisance to be proved, it must be proved by the Crown that the public, which means a considerable number of persons or a section of the public, was affected, as distinct from individual persons’ (at 1383).
In Rimmington itself, Lord Bingham commented that a public nuisance involved an act or omission which was ‘likely to inflict significant injury on a substantial section of the public exercising their ordinary rights as such’ (at [36]). It is notable, therefore, that in both Madden and Rimmington, whilst the courts refrained from specifying the number of persons who would need to be affected by the relevant conduct in order for it to be a public nuisance, the adjectives ‘considerable’ and ‘substantial’ were used to explain that something more than a mere handful of individuals was required. In Smith, counsel for the appellants argued, therefore, that on the basis of these authorities it was, in the words of Holroyde LJ: ‘… incumbent upon the prosecution to prove that their actions risked serious harm to “a significant section” of those present at Silverstone, or to “a substantial section of the public”, or to “a representative cross-section of those present at Silverstone” or to “a considerable number of persons … as distinct from individual persons”’ ([2024] EWCA Crim 1040 at [41]).
In rejecting the submission that the wording of s.78 ought to be interpreted in light of the authorities on the common law offence of public nuisance, the Court of Appeal placed weight on the fact that Parliament had not used any of the qualifying adjectives, such as ‘significant’, ‘substantial’ or ‘representative’, which appear in the earlier judgements. Had it done so, the link between the new offence and these past authorities would have been established. In the judgement of the Court, however, the statutory silence did not entitle judges to ‘read into s.78 words which Parliament chose not to use’ (at [43]). It follows from this, therefore, that in future prosecutions for the s.78 offence, as was formerly the case in respect of the now abolished common law offence, it will be a question of fact as to whether those put at risk of serious harm by a defendant's act or omission can be described as ‘a section of the public’. Thus, as the Law Commission noted in Simplification of Criminal Law: Public Nuisance and Outraging Public Decency, Consultation Paper No.193 (2010), whereas in PYA Quarries it was held that dust and vibration which affected approximately 30 houses did amount to a public nuisance, in the much earlier case of Lloyd (1802) Esp 200, noise affecting a mere three houses was held to be, at most, a private nuisance: see para.2.24.
In Smith, the trial judge had included the protestors as part of the ‘Silverstone community’ when assessing whether their actions had risked harm to a section of the public. Since the words of s.78 do not expressly exclude defendants from the calculation, the Court of Appeal accepted that in ‘rare’ circumstances, one or more co-accused might be identified as being part of the ‘section of the public’. However, in its judgement: ‘The language of the section as a whole points strongly to its application being limited, at least in all but unusual circumstances, to an act or omission by an accused which causes, or risks, harm to persons who are not themselves taking part in the commission of the public nuisance’ (at [48], emphasis added).
Given this observation, it is not surprising that the Court of Appeal disagreed with the trial judge that the defendants ought to have formed part of the ‘section of the public’ for the purposes of s.78. However, in its judgement, since those placed at risk by the appellants actions included all the drivers who were approaching the Wellington Straight when the protestors entered the prohibited area (and not just the two who drove past them as they sat on the track), as well as all the marshals and those assisting them at that section of the circuit, it had been open to the jury to find that they constituted a ‘section of the public’.
Further General Guidance
Towards its conclusion, the Court of Appeal's judgement in Smith provides some ‘general guidance’ as to the correct approach to follow when a court is hearing a s.78 prosecution. As is evident from the foregoing, much of it relates to the meaning of ‘section of the public’ in the present context. In addition to the points referred to previously, the Court of Appeal was also of the view that: ‘Persons are not necessarily excluded from the category of members of the public merely because they are present in some specific or official capacity, or in the course of their employment. Nor are they necessarily excluded from that category merely because their status gives them access to areas which are prohibited to other members of the public’ (at [50]).
On the facts of Smith, these remarks explain why the Court of Appeal took the view that a wider group of persons were affected by the protestors’ encroachment than the defence had contended. It follows from these remarks that police officers dealing with a public nuisance could form part of the ‘section of the public’ affected by it, as could those whose assistance is called upon to help remove protestors from dangerous locations, for example, when suspended above a bridge, as occurred in Trowland.
The Court of Appeal's ‘general guidance’ also emphasises that in cases such as the present, ‘the focus must be on the risk of harm which was created, not on whether any harm was in fact caused’ (at [46]). This reflects the wording of s.78 and the intention of the Law Commission when it proposed a statutory offence of public nuisance. Moreover, the Court of Appeal felt that it ‘is also necessary to be clear about the time at which the risk is to be evaluated’. Thus, on the facts of Smith, the risk of harm arose as soon as the protestors trespassed into the prohibited area; not simply when they sat down on the track. Whilst this later action inevitably increased the risk of harm, it did not create it.
Conclusion
The judgement in Smith is likely to be of some importance going forward, especially since it provides guidance on the approach which the lower courts ought to adopt when hearing a s.78 case. Whilst the absence of adjectives such as ‘significant’ or ‘substantial’ prior to the phrase ‘section of the public’ in s.78 was deliberate rather than an oversight, it seems likely that prosecutors will, in practice, continue to have such matters in mind so as to prevent a case being thrown out on the basis that an insufficient number of persons were put at risk by D's act or omission. When identifying the ‘section of the public’ for present purposes, Smith does not close the door on co-defendants being part of the affected class. However, what may constitute the ‘unusual circumstances’ when this is so will be a matter for the prosecution to establish on a case-by-case basis.
