Joshua Smith & Ors v R

The statutory offence of public nuisance is a distinct replacement for the abolished common-law offence. The phrase “a section of the public” must be given its ordinary meaning; Parliament did not require a significant, substantial or representative section, and there is no minimum number. A real, non-fanciful risk is assessed when created, by reference to actual and foreseeable circumstances. The relevant group must be distinguished from a series of individually targeted persons. People remain members of the public at a ticketed venue on private land. Co-accused are usually outside the relevant group, although unusual cases may differ. On a no-case submission, the judge asks whether a properly directed jury could find all ingredients proved; the jury should then apply the statutory words without artificial paraphrase.

Five appellants were convicted after a jury trial at the Crown Court at Northampton before Garnham J, having entered the Silverstone circuit during a Formula 1 race as part of a protest. They were charged under section 78 of the Police, Crime, Sentencing and Courts Act 2022 with intentionally or recklessly causing a risk of serious harm to a section of the public. The prosecution alleged a risk of death or personal injury. The judge rejected submissions of no case to answer and directed the jury on the statutory ingredients. The appellants argued that the former common-law authorities required a substantial or significant section of the public, that the persons at risk were only individuals, and that the directions were inadequate. David Baldwin also challenged the evidence of secondary liability. The central issues were the meaning of “a section of the public”, the assessment of risk, and the adequacy of the directions.

Appeals dismissed. The renewed application by David Baldwin for leave to appeal was refused.

1. Statutory construction. Section 78 of the Police, Crime, Sentencing and Courts Act 2022 created a new statutory offence and abolished the common-law offence. The court therefore began with the statutory words and rejected the argument that qualifying expressions from the former common-law authorities should be read into “a section of the public”. Those authorities could assist, but did not dictate the construction of section 78. The offence was capable of being committed on private land, including a ticketed racecourse or stadium.
2. Assessment of risk. The relevant question was whether the conduct created a real, rather than fanciful, risk of serious harm. The risk was assessed by reference to the circumstances which actually obtained and, where foreseeable, the different conduct of persons beyond the defendants’ control. It had to be evaluated when the risk was created, not only at the later point when the defendants sat on the track.
3. Section of the public. The jury had to identify the persons placed at risk, including persons who might respond to the conduct. A “section of the public” meant a group within a larger body of persons. There was no minimum number. Status, employment, reasons for being present and access to restricted areas could be relevant but were not determinative. The group had to be distinguished from a series of individuals specifically targeted or individually placed at risk. Co-accused could theoretically form part of the relevant group, but such cases would be rare, particularly where they acted together.
4. Application. The risk arose when the appellants entered the prohibited area while cars were still travelling along the straight. Drivers, marshals and others who might assist them could constitute a section of the public. Excluding the defendants themselves, the evidence was sufficient for a properly directed jury to reach that conclusion. The judge’s focus on the later point of entry onto the track and his reference to the defendants as part of the “Silverstone community” were errors, but worked in the appellants’ favour and did not make the convictions unsafe. His directions contained no error of law, although fuller guidance would have been preferable. The reasoning rejecting Baldwin’s secondary-liability argument was unimpeachable.

• Court of Appeal (Criminal Division): appeals against conviction dismissed; David Baldwin’s renewed application for leave to appeal refused, [2024] EWCA Crim 1040.
• Crown Court at Northampton: following a jury trial before Garnham J, the appellants were convicted under section 78 of the Police, Crime, Sentencing and Courts Act 2022.