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  1 WLR 1379. In R v Ong  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.
Francis FitzGibbon QC
Francis FitzGibbon QC is a criminal barrister at Doughty Street Chambers, London (www.doughtystreet.co.uk). He undertakes all kinds of criminal work and has contributed to 'A Practitioner's Guide to the Law and Regulation of Financial Crime' (Sweet & Maxwell 2011). He sits as a part-time Immigration Judge. The views expressed here (and in his blog Nothing Like The Sun: http\\:ffgqc.wordpress.com) are personal.