Goldstein v R

The common-law offence of public nuisance remains an offence known to law. It covers an unlawful act or breach of legal duty which materially endangers or interferes with the public’s health, safety, property, morals, comfort, convenience, or common rights.

The offence is sufficiently certain to comply with European Convention on Human Rights requirements. Its flexible language permits reasonably foreseeable application to new factual circumstances. A prosecution may therefore be a justified and proportionate interference with private life or freedom of expression where the offence’s ingredients are proved.

A sustained campaign may constitute one public nuisance. The jury determines whether the cumulative conduct materially affected a sufficient class of the public.

Two conjoined appeals concerned the common-law offence of causing a public nuisance. One appellant, referred to as R, challenged a preliminary ruling of Leveson J at Southwark Crown Court that an indictment alleging a nine-year campaign of racially offensive postal packages disclosed an offence and was compatible with Convention rights.

Goldstein v R concerned Goldstein’s conviction after an envelope containing salt leaked at a postal sorting office during the 2001 anthrax alerts. The incident caused an evacuation and disruption to postal deliveries.

The Court considered whether public nuisance survived the Human Rights Act 1998, whether the campaign could be charged as a single offence, and whether Goldstein’s conviction was unsafe because of the judge’s directions.

1. Both appeals were dismissed. The Court held that causing a public nuisance remains a common-law offence. It consists of an act not warranted by law, or an omission to perform a legal duty, whose effect endangers or materially interferes with the public’s health, safety, property, morals, comfort, convenience, or common rights.

2. The offence was sufficiently certain for European Convention on Human Rights purposes. Its elements enabled a person, with appropriate legal advice if necessary, reasonably to foresee whether proposed conduct was capable of amounting to public nuisance. The use of flexible language did not impermissibly enlarge criminal liability; it allowed the established offence to be applied to new situations.

3. Although a public-nuisance prosecution could interfere with rights under Articles 8 and 10, the interference was prescribed by law and proportionate. The offence served pressing social needs, including public safety, prevention of disorder, protection of health and morals, and protection of others’ rights. Freedom of expression protected material that offended, shocked or disturbed, but did not prevent punishment of conduct which unreasonably and substantially interfered with others’ comfort and rights. Once the ingredients of the offence were proved, the jury did not need to conduct a separate Convention balancing exercise.

4. In R’s case, the 538 postal items were capable of being treated as one campaign and therefore one public nuisance. Their cumulative effect, rather than each item viewed in isolation, was the relevant question. The indictment was not duplicitous, and the evidence was capable of establishing a material interference with a substantial section of the public.

5. In Goldstein’s case, an act was “not warranted by law” only where no legal authority authorised it. The trial judge’s later elaboration of the actus reus was capable of confusing actus reus and mens rea, but it imposed an additional burden favourable to Goldstein and did not render the conviction unsafe. The Court also declined to depart from the established mens rea direction in R v Shorrock.

• Court of Appeal (Criminal Division): dismissed both appeals, certified four questions of law of general public importance, and refused leave to appeal to the House of Lords.

• Southwark Crown Court: Leveson J ruled at a preliminary hearing that R’s indictment disclosed the common-law offence of public nuisance and that the prosecution was compatible with Articles 7, 8 and 10 of the European Convention on Human Rights.

• Central Criminal Court: Goldstein was convicted of causing a public nuisance.