DPP v Fearon

A single act of soliciting a woman for prostitution does not become a public nuisance merely because it occurs in an area where similar acts are frequently committed. Public nuisance requires a common injury to the public or interference with rights enjoyed by the public as such. Separate acts affecting individuals cannot be aggregated to create that common injury. A defendant is not ordinarily criminally liable for the independent acts of others, absent a conspiracy, joint enterprise or similar basis. The common law offence must also be applied cautiously where Parliament has created a specific statutory offence covering related conduct.

The Director of Public Prosecutions brought a case stated appeal from a decision of Stobart DJ. The defendant had approached an undercover police officer in a recognised vice area, agreed a price for sex and asked her to walk down a side street. He was charged with causing a public nuisance by soliciting a female for prostitution on a public highway.

The statutory offence of persistent soliciting under section 2 of the Sexual Offences Act 1985 did not apply because persistence was not alleged. The issue was whether the single act could nevertheless amount to public nuisance because it occurred among similar independent acts in a vice area.

1. Appeal dismissed. The court answered the stated question in the negative. A single act by a man on foot of soliciting a woman for prostitution within a recognised vice area cannot amount in law to the common law offence of public nuisance.
2. Applying Rimmington [2005] UKHL 62, public nuisance requires an act or omission which causes a common injury by endangering the public’s life, health, property, morals or comfort, or obstructing rights enjoyed by the public as such. The focus is the public nature of the injury.
3. No common injury was shown by the defendant approaching one woman. Nor could numerous separate approaches to individual women be aggregated into a common or public nuisance. Such conduct might fall within section 2 of the Sexual Offences Act 1985 if the statutory requirement of persistence were satisfied, but that requirement could not be bypassed by invoking the common law.
4. The defendant’s knowledge that others carried out, or were likely to carry out, similar acts did not make him criminally liable for those independent acts. There was no allegation of conspiracy, joint enterprise or comparable basis for attribution. Extending public nuisance in that way would be artificial and unprincipled.
5. The court added, without deciding the point, that it would rarely be appropriate to prosecute conduct under the common law offence where it fell within a specific statutory provision. Treating a single act as public nuisance could produce the anomalous result that it attracted a potentially greater penalty than persistent solicitation under section 2.

Mr Justice Calvert Smith agreed with Lord Justice Elias.

• High Court (Administrative Court): The appeal by way of case stated was dismissed. The decision of Stobart DJ that the alleged conduct could not constitute public nuisance was upheld.