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Trenton Oldfield and public nuisance

Mr Trenton Oldfield only stopped the Boat Race for 20 minutes while he baptised himself in the Thames to protest against the evils of capitalism. He achieved a brief fame. It increased when the police decided to prosecute him for the antique offence of ‘public nuisance’. Now he has been banged up for six months.

The Court has revived the equally venerable punishment known in the trade as ‘breaking a butterfly on a wheel’.

It’s worth taking brief look at what the offence of ‘public nuisance’ involves.

Archbold, the criminal law bible, is not known for jokes but the first entry for public nuisance in the index is ‘see also Dogs’. Public nuisance has been defined as an act not warranted by law, or the failure to discharge a legal duty, if the effect is to endanger the 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. This derives from the 1835 civil case, Wilkes v Hungerford Market Co, in which Wilkes lost trade in his bookshop because the defendants blocked the footpath outside for an unreasonable time.

Nuisance is principally a tort – a civil wrong, which causes damage measurable in money. During the 18th century the courts began to regard some acts of nuisance as having a criminal character, affecting the public as a whole, not just those directly affected by the conduct in question. Many of the early reported cases concern difficulties encountered in the streets, for example in R v White and Ward (1757) 1 Burr 333 the defendants caused a nuisance to ‘all the King’s liege subjects living in Twickenham and travelling and passing the King’s highway’ by impregnating the air with ‘noisome and offensive stinks and smells’. With the rapid growth of cities and lack of hygiene, it is comprehensible that the law stepped in not just to award damages, but to punish wrongdoers.

In more recent times, the courts have insisted that the conduct alleged as ‘nuisance’ must harm the public in general, not merely those immediately affected: so a hoax bomb threat to a business did not count, because the nuisance was confined to the small number of people who were aware of it: R v Madden [1975] 1 WLR 1379. In R v Ong [2001] 1 Cr App R (S) 404 the defendant pleaded guilty to conspiracy to cause public nuisance by turning out the floodlights at a Premier League football match, as part of a betting scam. Enough people were affected to justify the use of the offence. He got four years.

In 2005 the House of Lords (R v Rimmington & Goldstein) decided that the Wilkes definition held good, and complied with the requirement of Article 7 of the European Convention of Human Rights that criminal offences should be certain and clear. Lord Bingham said it was clear, precise, adequate, and based on a rational and discernible principle, but the convictions of the two appellants were quashed: R had sent 538 letters and packages containing racist material to selected ethnic minority targets. G (unconnected) put salt in a letter to a business acquaintance, as a joke: some leaked out in the Post Office and was mistaken for anthrax.

Counsel for R submitted that the offence had never been used to punish the dissemination of political views, however repulsive. The House of Lords held that where a statutory offence existed, it should be used instead in cases that were formerly charged as public nuisance, including highways, environmental, post and telecommunication, and public order offences. Lord Bingham even cited this polemic from Jeremy Bentham, excoriating judge-made ‘dog law’:

‘It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do – they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it.’

The Lords quashed both R’s and G’s conviction but they did not put down public nuisance. They held that it could be used against a residual category of conduct if it there was no applicable statutory offence.

Now, the sleeping law has reared up and bitten Mr Oldfield. He was undoubtedly making a political statement, and by using a sporting event followed in the footsteps of Emily Davison (threw herself under the King’s horse at the 1913 Derby – suffragette) and Peter Hain (disrupted the South Africa test match at Lords in 1970 – anti-apartheid).

The use of this antiquated zombie law against him was controversial. Prosecutors probably could find not statute that prohibits swimming in the Thames on Boat Race day. In many if not most cases where political protest infringes criminal law (such as animal rights cases), and no harm is done, a fine or a conditional discharge is usually enough. No doubt there will be an appeal against the conviction and the sentence.

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Francis FitzGibbon QC Posted by on October 19, 2012. Filed under Crime,Sentencing. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

4 Responses to Trenton Oldfield and public nuisance

  1. CrimeLine.info® Reply

    October 20, 2012 at 12:51 pm

    An interesting journey through English common law, but little about this particular incident over and above a 20 minute disruption to the boat race. That sounds so very trivial, and if it were really the case then a prosecution under an existing River Thames byelaw would have been appropriate. But let us examine the case in just a little more detail, and in particular the harm caused.

    Thousands of people lining the river bank had their day spoiled to a greater or lesser extent. No doubt many others who watched on TV suffered to a degree (albeit small) as well.

    Race officials were genuinely alarmed at what might have happened. It is not fanciful to see that this incident could have taken a dramatic turn with loss of life or serious injury to the defendant himself, the boat crew and those charged with rescuing people in difficulty on the river (a tidal river incidentally).

    TV broadcast was disrupted for a total of 1/2 hour, the commercial cost of that not specified, but certainly not minor.

    The sportsmen and women involved had trained for years. An event that would for most if not all be the pinnacle of their sporting career. An international event of some sporting importance. The proper efficient running of that event was shattered for no good reason.

    And last but not least, this was not a bout of idle foolishness, but a calculated, intentional and arrogant crime that was designed to cause exactly the disruption that did follow.

    Interfering with the rights of the lawful majority is far from a trivial crime. The sentencing remarks are here:

    http://www.crimeline.info/case/r-v-trenton-oldfield

    But, did it deserve prison? Well, the 2003 Act stipulates that sentencing is to achieve a number of aims: punishment, rehabilitation and deterrence being the main ones. Will it deter others? Who knows, but more likely to do so when the punishment is prison as opposed to a community sentence. The other important factor is that the Judge is obliged to take note of earlier like authority, this is one such case where again the behaviour might well be categorised as boorish nonsense, but the custody threshold was held to be crossed:

    http://www.crimeline.info/case/r-v-dallinger

    Personally speaking I see little if any point of short custodial sentences, but for as many as take that view, others see it somewhat differently.

    Cases like this, and the recent social media cases have sparked an interesting sentencing debate. A welcome development in my view.

    I hope that my reply to this blog post restores the balance a little, to what is a very important debate that is as much to do with the views of the general public as it is to do with lawyers.

  2. Pingback: Trenton Oldfield Sentence – A Stroke too Far? | The Student Lawyer

  3. Pingback: Is there ANY consistency in sentencing? | UK Criminal Law Blog

  4. Pingback: Define nuisance | Travelfarestra

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