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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Goldstein v R  EWCA Crim 3450 (28 November 2003)
Cite as:  1 Cr App R 27,  EWCA Crim 3450,  2 All ER 589,  UKHRR 296,  1 WLR 2878,  1 Cr App Rep 27,  WLR 2878
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT & THE CENTRAL CRIMINAL COURT
London, WC2A 2LL
B e f o r e :
MR JUSTICE MOSES
SIR EDWIN JOWITT
| Interlocutory Application under s. 35/36 Criminal Procedure & Investigations Act 1996
|HARRY CHAIM GOLDSTEIN|
|- v -|
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr David Perry & Ms Tracy Jane Ayling (instructed by CPS (HQ)) for the Respondents
Mr Bernard Eaton
& Ms Katharine Blackburn (instructed by Coninghams, Solicitors) for the Appellant R
Mr David Perry & Mr Mark Rainsford (instructed by CPS (HQ)) for the Respondents
Crown Copyright ©
Lord Justice Latham:
"Public nuisance is an offence at common law. A person is guilty of a public nuisance (also known as a common nuisance) who (a) does an act not warranted by law, or (b) 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 rights common to all Her Majesty's subjects."
"A common nuisance is an act not warranted by law or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all His Majesty's subjects."
"I do not propose to attempt a more precise definition of a public nuisance than those which emerge in the text books and authorities to which I referred. It is, however, clear in my opinion, that any nuisance is "public" which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. The sphere of the nuisance may be described generally as "the neighbourhood"; but 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. It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has so been affected for an injunction to issue."
"What is the difference between a public nuisance and a private nuisance? He [that is counsel] is right to raise it because it affects his clients greatly. The order against them restrains them from committing a public nuisance, not a private one. The classic statement of the difference is that a public nuisance affects Her Majesty's subjects generally, whereas a private nuisance only affects particular individuals.
But this does not help much. The question: "When do a number of individuals become Her Majesty's subjects generally" is as difficult to answer as the question: When does a group of people become a crowd? Everyone has his own views. Even the answer "Two's company, three's a crowd" will not command the assent of those present unless they first agree on "which two". So here I decline to answer the question how many people are necessary to make up Her Majesty's subjects generally. I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so wide spread 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."
"The preferment of charges alleging public mischief appears to have become far more frequent in recent years. Why this is, I do not know. It may be that it is due to a feeling that the conduct of the accused has been so heinous that it ought to be dealt with as criminal and that the best way of bringing it within the criminal sphere is to allege public mischief and trust that the courts will fill the gap, if gap there be, in the law. But if gap there be, it must be left to the legislature to fill.
I hope that in future such a vague expression as "public mischief" will not be included in criminal charges. It introduces a wide measure of uncertainty and should not be a vehicle for the enlargement of the criminal law or a device to secure its extension to cover acts not previously thought to be criminal."
"In his submissions to us on behalf of the appellant, Mr Haworth made two points. First, that each of these telephone calls was a single isolated act to an individual person, which may have represented a private nuisance, but it is wrong to lump them all together and to regard the cumulative effect as an offence of public nuisance. Secondly, that, in any event, the scale and width of the conduct complained of was insufficient to constitute a public nuisance.
In our judgment it is permissible and necessary to look at the cumulative effect of these calls made to numerous ladies on numerous occasions in the case of each lady, and to have regard to the cumulative effect of the calls, in determining whether the appellant's conduct constituted a public nuisance. In our opinion it was conduct which materially affected the reasonable comfort and convenience of a class of Her Majesty's subjects …. It was a nuisance which was so wide spread in its range, or so indiscriminative in its effect, that it would not be reasonable to expect one person to take proceedings on her own responsibility but that it should be taken on the responsibility of the community at large…. It was proved by the Crown that the public, meaning a considerable number of persons or a section of the public, was affected, as distinct from individual persons ….
The second point involves a question of fact, which was properly left to the jury. Here was an indiscriminate selection of members of the public with whom the appellant had come into contact. It was not a selection of a few individuals. It was a case in which ladies generally who lived in the South Cumbria area, and whose telephone numbers had become known to this appellant, were at risk from him of being harassed and caused annoyance, alarm and distress. Whether there was a sufficient number of complainants of calls to amount to a public nuisance was a question for the jury to decide following proper directions such as were given in this case."
"It is, in our view, still an offence known to the law of this country to commit a public nuisance"
"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed…."
"… A norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree which is reasonable in all the circumstances, the consequences that a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unobtainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."
"The Commission considers that the same principles also apply to the interpretation and application of the common law. Whilst this branch of the law presents certain particularities for the very reason that it is by definition law developed by the courts, it is nevertheless subject to the rule that the law making function of the courts must remain within reasonable limits. In particular in the area of the criminal law it is excluded, by virtue of Article 7(1) of the Convention, that any acts not previously punishable should be held by the courts to entail criminal liability, or that existing offences should be extended to cover facts which previously clearly did not constitute a criminal offence. This implies that constituent elements of an offence such as e.g. the particular form of culpability required for its completion may not be essentially changed, at least not to the detriment of the accused, by the case law of the courts. On the other hand it is not objectionable that the existing elements of the offence are clarified and adapted to new circumstances which can reasonably be brought under the original concept of the offence."
"It is however compatible with the requirements of Article 7(1) for the existing elements of an offence to be clarified or adapted to new circumstances or developments in society in so far as this can reasonably be brought under the original concept of the offence. The constituent elements of an offence may not however be essentially changed to the detriment of an accused and any progressive development by way of interpretation must be reasonably foreseeable to him with the assistance of appropriate legal advice if necessary."
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others."
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and receive and impart information and ideas without interference from public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"…the English law of blasphemy does not prohibit the expression, in any form, of views hostile to the Christian religion. Nor can it be said that opinions which are offensive to Christians necessarily fall within its ambit. As the English courts have indicated, it is the manner in which views are advocated rather than the views themselves which the law seeks to control. The extent of insult to religious feelings must be significant as is clear from the use by the courts of the adjectives "contemptuous", "reviling", "scurrilous", "ludicrous" to depict material of a sufficient degree of offensiveness.
The high degree of profanation that must be attained constitutes in itself, a safeguard against arbitrariness. It is against this background that the asserted justification under Article 10(2) in the decisions of the national authorities must be considered."
"Artists and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph (2) of Article 10. Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, "duties and responsibilities"; their scope will depend on his situation and the means he uses. In considering whether the penalty was "necessary in a democratic society", the Court cannot overlook this aspect of the matter."
"Between 20th May 1992 and 13th June 2001 caused a nuisance to the public, namely by sending 538 separate postal packages as detailed in a schedule SQ28 containing racially offensive material to members of the public selected by reason of their perceived ethnicity or further support such group, or randomly selected in an attempt to gain support for his views, the effect of which was to cause annoyance, harassment, alarm and distress."
"Of course putting salt into an envelope is not by itself an illegal act but if in doing that you create the pretence that it is anthrax then that is capable, it is a matter for you to decide whether it is or not, of creating a nuisance. Of course it would be an innocent act to send salt through the post for an innocuous reason. Using Mr Goldberg's example sending salt to somebody who had forgotten to take it for the next days picnic or something of that nature, that would be a wholly innocuous act, an innocent act for an innocuous purpose. But that would not necessarily be the case if it was done as pretence that it was anthrax. That of course is the fundamental part, you may think, of the allegation made by the prosecution….
Now only if you are sure that his act created the pretence and lead to the those consequences that I have mentioned would you go onto the next question. That is the first question you have to answer. Are you sure that his act created the pretence and led to the consequences that occurred? If you decide his act in posting the letter containing the salt did not have those results or if you are not sure, then he is not guilty. I should make it clear at this point whether it is done as a private joke or to shock Mr Erlich is only relevant in the context of you deciding whether the salt was sued to simulate the appearance of anthrax. To put it this way, if Mr Erlich had received it, however shocked he may have been by it, it would not have been a public nuisance at all. It may have been some other offence but it would not have been a public nuisance."
"We submit that the jury should indeed have been directed in clear terms only to convict if they were sure the Crown had proved D intended to simulate anthrax in the sense that the recipient Erlich should fear it really was anthrax, albeit only for a short time. They were not so directed."
LORD JUSTICE LATHAM: For the reasons given in a judgment, copies of which have been provided to the parties and which we now hand down, the appeals in both cases are dismissed.
MR GOLDBERG: My Lords, the two items remaining to decide are, firstly, an application which I make for Goldstein and which I understand will also be made for R for leave to appeal to the House of Lords and, of course, for your Lordships to certify relevant questions.
LORD JUSTICE LATHAM: We have seen your proposed questions. We have not in fact heard from the prosecution as to whether or not there have any representations which they wish to make.
MR GOLDBERG: Yes.
MR RAINSFORD: I can deal with that very briefly indeed, my Lord. The only possible substantive point, we would submit, would be the Shorrock mens rea point, which does not arise out of the judgment. As your Lordship knows, before the House of Lords would want to consider an appeal on such a basis they would want a fully considered judgment from this court.
LORD JUSTICE LATHAM: Yes.
MR RAINSFORD: And we do resist the application accordingly.
LORD JUSTICE LATHAM: Mr Goldberg, there is a problem, in that your argument was not developed: you simply indicated to us by submission in relation to the case of Spencer that we might have power to depart from Shorrock, but beyond that the argument never went.
MR GOLDBERG: My Lord, other than recent dicta in the House of Lords there is little one can add. Shorrock is either right or it is wrong. The spirit of the law has changed, as indicated by the dicta in the case of G, to which I referred your Lordship. But the issue is simple: is it right or is it wrong? In a sense the court is bound by that decision and there is little more that could be said.
LORD JUSTICE LATHAM: There are quite a few problems, it seems to me, that need to be teased out in that particular area because the basis of the Shorrock decision was the relationship of public nuisance to private nuisance, which may be an area of some interest to their Lordships and might have been helped by some detailed argument which we did not have. You submit that the points of law to be certified should include, if there are any, the Shorrock point?
MR GOLDBERG: My Lord, yes. But with great respect to what Mr Rainsford has just said, I do not understand why he says there are no substantive grounds of appeal because of course your Lordships have decided the way in which the human rights legislation applies to public nuisance, and that is new.
LORD JUSTICE LATHAM: Yes.
MR GOLDBERG: Unless you want me to develop that, I would argue it speaks for itself. Your Lordships' judgment is an important judgment and a new judgment in this field.
LORD JUSTICE LATHAM: Are there any other submissions in support of Mr Goldberg?
MISS BLACKBURN: I simply adopt the position as pointed out in the certified points.
LORD JUSTICE LATHAM: Yes.
LORD JUSTICE LATHAM: Mr Goldberg, we do consider that there are some issues which can properly be certified, but we are not convinced that as drafted by you they really are an appropriate set of questions. What we would suggest is, for your consideration, that we keep the question 1 as drafted:
"Is the mens rea requirement of the common law offence of causing a public nuisance satisfied by proving that the defendant either knew or ought to have known, in the sense that the means of knowledge were available to him, that there was a real risk that the consequence of his actions would be to create the sort of nuisance that in fact occurred?"
The second question should be:
"If not, what is the mens rea?"
MR GOLDBERG: Yes.
LORD JUSTICE LATHAM: Then the next questions should, in our view, be formulated in the following way. The third question is:
"Is the offence of causing a public nuisance as currently defined compatible with Articles 7, 8 and 10 of the European Convention on Human Rights, or does the question of compatibility fall to be decided on the facts of the particular public nuisance alleged to have been caused?"
"If the latter, is it for the jury or the judge alone to decide the issue of compatibility?"
That wraps up the issues that you had in mind.
MR GOLDBERG: I agree.
LORD JUSTICE LATHAM: We would be prepared to certify those questions, but we refuse leave to appeal.
MR GOLDBERG: Does your Lordship possibly have those questions reduced to writing, because, if so, a copy would be very gratefully received so we have them exactly?
LORD JUSTICE LATHAM: Yes.
MR RAINSFORD: May I raise one matter, please?
LORD JUSTICE LATHAM: Yes.
MR RAINSFORD: It is the issue of publicity, which of course normally under section 37(1) of the CPIA is prima facie forbidden. Mr Perry has asked me to mention to the court that he submits that it may be of considerable use for the judgment to be circulated at the present time and there would be no prejudice to either defendant.
LORD JUSTICE LATHAM: I suppose because the two are wrapped up together, it means that the Goldstein judgment cannot be shelled out from the R judgment.
MR RAINSFORD: It could be redacted but it would be very difficult, I respectfully agree.
LORD JUSTICE LATHAM: Miss Blackburn, this affects your client; have you any submissions as to that?
MISS BLACKBURN: The only submission I can make is that I have spoken to Mr Eaton and the decision was that perhaps his name could be protected and it could be reported simply by way of an initial.
LORD JUSTICE LATHAM: That seems to be a satisfactory solution, does it not?
MR RAINSFORD: It does indeed, I respectfully agree.
LORD JUSTICE LATHAM: So we will deal with it in that way.
MR RAINSFORD: Thank you very much. There are no issues as to costs in either appeal.
LORD JUSTICE LATHAM: As far as costs are concerned, there is an issue of public funding costs. Mr Goldberg, what do you say?
MR GOLDBERG: I hope that there has reached your Lordships shortly before you came into court an unreported decision --
LORD JUSTICE LATHAM: The judgment of the Lord Chief Justice?
MR GOLDBERG: Yes. I am grateful to my learned friend Mr Grant, who found it this morning on the internet. We would submit that the guidance there given that you do not, in effect -- if I can put this into my own words -- want to deter a perfectly proper appeal, is very much in point in today's case. This is a case where leave was given by Leveson J, saying -- if I can remind you -- that "the true ingredients of the offence are in issue and in the circumstances it is appropriate to allow you to argue your grounds of appeal"; and, of course, questions have been certified for the House of Lords and the judgment itself is plain in covering important new ground.
LORD JUSTICE LATHAM: As far as your client's means are concerned, has there been an assessment of his means?
MR GOLDBERG: There has been no assessment. He has filled in a form and I can help your Lordships about his means.
LORD JUSTICE LATHAM: First of all, can we start at the beginning? Was he publicly funded for the purposes of the trial?
MR GOLDBERG: No, he paid privately for his trial and his total fees were £35,000.
LORD JUSTICE LATHAM: Yes.
MR GOLDBERG: And, indeed, he paid prosecution costs of £1,850 below, all of that paid.
My Lords, he is a respectable small businessman of hitherto good character. He earns £52,000 a year - that is what is on his tax return for the last year in which he has done his returns, which is the year ending 2002. He has six children of his own, but he supports the two children of his deceased brother in addition. So there are eight children. He has the equity in his home, which one would expect, and he had about £70,000 in savings. But, other than that, he is a hard-working small businessman. We would submit that it is just the sort of case Lord Woolf had in mind. He was worried about bringing this appeal, can I tell you, because of this exact point. In our submission one is entitled to look at the merits of the case, at how arguable it was, and, indeed, the terms in which he was given leave. If I were wrong in that, can I invite you to at least cap the costs at a total figure?
You would certainly have the power, as I see it, if I can just briefly refer you to the two relevant regulations. It is page 908 of the latest Archbold, paragraph 6-268. I will take you straight to the two regulations that seem to us in point. Regulation 3:
"Where an individual receives representation in respect of criminal proceedings which is funded by the Lord Chancellor ... the court before which the proceedings are heard ..."
LORD JUSTICE LATHAM: "... some or all the costs", yes.
"... may make an order for recovery of defence costs order."
The only other guidance is over the page there, regulation 12, 6-277:
"Where the judge considers that it is or may be reasonable to make a recovery of defence costs order, he may make the order."
So the test is reasonable. It is obviously a very wide discretion. Is it reasonable in this case where you have what I would call a middle class person who in a sense falls into the income trap, who has --
LORD JUSTICE LATHAM: Yes, I think we have your point, Mr Goldberg.
MR GOLDBERG: Yes.
LORD JUSTICE LATHAM: I do not think it can really be elaborated.
MR GOLDBERG: No. I rely therefore on Lord Woolf's dicta.
LORD JUSTICE LATHAM: We will retire.
LORD JUSTICE LATHAM: In the circumstances of this case, although the court clearly has the power here to make a recovery of defence costs order, we do not consider it necessary to make such an order in this case, it being a case in which issues of principle have been raised and have been considered by us to be sufficiently significant to certify questions for the House of Lords. In those circumstances, no order is made.
MR GOLDBERG: I am obliged. My Lords, there only remains the written questions which seem to have disappeared.
MR JUSTICE MOSES: I handed them down.
MR GOLDBERG: I am very grateful, my Lord, thank you.
LORD JUSTICE LATHAM: If you can make sure they are reduced into a form which can be handed into the court.
MR GOLDBERG: Yes, we will write them out and supply them to your Lordships.
LORD JUSTICE LATHAM: Thank you very much.
1. Is the mens rea requirement of the common law offence of causing a public nuisance satisfied by proving that the defendant either knew or ought to have known, in the sense that the means of knowledge were available to him, that there was a real risk that the consequence of his actions would be to create the sort of nuisance that in fact occurred? (as per R v Shorrock  QB 279).
2. If not, what is the mens rea?
3. Is the offence of causing a public nuisance as currently defined compatible with Articles 7, 8 and 10 of the European Convention on Human Rights, or does the question of compatibility fall to be decided on the facts of the particular public nuisance alleged to have been caused?
4. If the latter, is it for the jury or the judge alone to decide the issues of compatibility?