- These two appeals have been heard together because they both raise the
question of the nature of the common law offence of causing a public mischief
and whether it has survived the coming into effect of the Human Rights Act
1998. The appellant ‘R’ appeals under section 35 of the Criminal Procedure
and Investigations Act 1996 against a preliminary ruling by Leveson J that
the indictment that he faced of causing a nuisance to the public between
the 25th May 1992 and the 13th June 2001 by sending
538 separate postal packages containing racially offensive material charged
him with an offence known to the common law and that its prosecution did
not amount to an abuse of process as being in breach of Article 7, 8 and/or
10 of the European Convention on Human Rights. The appellant Goldstein appeals
against his conviction of causing a public nuisance by sending an envelope
through the post on October 18th 2001, at the height of the security
alerts after the events of September 11th 2001, containing salt
which leaked out at the sorting office at Wembley causing the evacuation
of 110 postal workers and the attendance of specialist police officers to
determine whether or not the salt was in fact anthrax.
- That short description of the nature of the two indictments suffices for
the purposes of considering the main submission in both appeals, although
it will be necessary to return to the facts in order to deal with arguments
which are specific to each appellant.
- Common law
has long recognised the crime of causing a public nuisance. It is not necessary
for the purposes of this judgment to trace its origins
and its history. These have been set out in an article by JR Spencer, "Public
nuisance – A critical Examination" published in the Cambridge Law Journal
in March 1989. The current definition of the offence in the 2003 Edition
of Archbold at paragraph 31-40 is as follows:
"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."
- This definition is taken from Stephen’s Digest of the Criminal Law, 9th Edition,
1900 which defined the offence at page 184 in the following terms:
"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."
- This latter definition is the one adopted in the 10th Edition
of Smith and Hogan at page 772. It was also relied upon by the Court of Appeal
in Attorney General –v- PYA Quarries [1957] 1 All ER 894, which was
a relator action for an injunction to restrain a public nuisance caused by
dust and vibration in a quarry. Romer LJ said at page 902:
"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."
- Denning LJ said at page 908:
"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."
- As this court explained in R –v- Shorrock 98 Cr App R 67, a public
nuisance gives rise to a liability both in criminal and civil law. It can
attract the sanction of a criminal charge or civil liability pursuant to
a relator action or a claim for damages. But the definition of a public nuisance
is the same.
- It is submitted, however, on behalf of the appellants that this definition
is so vague and uncertain in its scope that it should no longer be recognised
at common law, and offends against the principle of legal certainty enshrined
in Article 7 (1), 8(2) and 10(2) of the European Convention on Human Rights.
- Dealing first with the position at common law, we have been referred to DPP
–v- Withers [1975] AC 842 where the House of Lords considered the validity
of an indictment charging the offence of conspiracy to effect a public
mischief. It held that there was no such offence. We have been referred
in particular to the speech of Lord Dilhorne, where he said at page 861:
"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."
- It is submitted that those words are equally applicable to a charge of
causing a public nuisance. We are urged to accept the argument of Mr Spencer
in the Article to which we have referred, that the concept of public nuisance,
which was a useful, if not the only, tool at one time available for controlling
activities which affected the health and welfare of the community, has been
extended to an extent that gives rise to the risk that it could be used for
the purposes of prosecuting any persons whose actions are deemed to be unacceptable
to the authorities. We disagree. A number of decisions of this court demonstrate
its utility as providing a criminal sanction for the proper control of those
who subject their fellow citizens to intolerable behaviour.
- In R –v- Shorrock to
which we have already referred, it was accepted that the use of land for
an unauthorised "acid party" causing substantial
inconvenience and disruption to neighbours was capable of amounting to the
crime of public nuisance; the only question was the requisite mens rea. In R
–v- Johnson [1996] 2 Cr App R 434, this court upheld the appellant’s
conviction of causing a public nuisance for using the public telephone system
over a period of about 5˝ years to
cause nuisance, annoyance, harassment, alarm and distress. He had made hundreds
of obscene telephone calls to at least 13 women. Tucker J, giving the judgment
of the Court said:
"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."
- In our view, these cases provide clear authority, by which this court is
bound, for the continued existence of the offence of public nuisance at common
law, as defined in the current edition of Archbold. Despite the attractive
submissions made to us, in particular by Mr Eaton in his skeleton argument,
we are therefore satisfied that these indictments are properly laid at common
law. As this court said in R –v- Madden [1975] 61 Cr App R 254:
"It
is, in our view, still an offence known to the law of this country to commit
a public nuisance"
- The question then arises as to the effect of the Human Rights Act 1998,
and the Articles of the Convention to which we have already referred. The
first Article which requires consideration is Article 7.1 which provides:
"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…."
- The essential
principle which the offence of public nuisance is said to infringe is that
a law
must be formulated with sufficient precision to enable
a citizen to regulate his conduct. It is similar to the concept required
in Articles 8.2 and 10.2, to which we will return, that the derogation from
the right protected by those Articles can only be justified if it is "in
accordance with the law" (Article 8.2) or "prescribed by law" (Article
10.2). The latter phrase was considered by the European Court of Human Rights
in The Sunday Times –v- The United Kingdom 2 EHRR 245. It stated at
paragraph 49:
"… 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."
- In the context of Article 7, we have been referred to the decision of X
Ltd and Y Ltd –v- UK 28 DR 77 which was an application in which the
European Commission of Human Rights ("the Commission") considered
the common law offence of blasphemous libel. At paragraph 9, the Commission
stated:
"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."
- The respondents submit that this decision is in fact helpful to them. Mr
Perry submits on their behalf that the elements of the offence are perfectly
clear, and their application to the present cases is merely an example of
the way in which the law can be utilised to deal with new factual situations.
He has referred us to SW –v- United Kingdom and CR –v- United Kingdom [1995]
21 EHHR 363 where the Court considered and rejected complaints by two applicants
who had been found guilty of raping their wives which was an undoubted extension
of the concept of rape as had been previously understood. Although the Commission
had declared the complaints admissible, he relies on paragraph 48 of its
opinion at page 375 of the report, in which the Commission stated:
"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."
- We consider that Mr Perry’s submissions are correct. If the law can be
adapted to deal with new situations, it is clear that the law can be applied
to new situations. The elements of the offence are sufficiently clear to
enable a person, with appropriate legal advice if necessary, to regulate
his behaviour. All that is required is a reasonable degree of foreseeability
of the consequences which action or conduct may entail. The indictments in
the present cases do no more than seek to apply the elements of the offence
to the particular facts; and it is for the jury, appropriately directed,
to determine whether or not the charges are made out. A citizen, appropriately
advised, could foresee that the conduct identified was capable of amounting
to a public nuisance. We do not accordingly consider that there has been
any breach of Article 7.
- We turn then to Articles 8 and 10. They essentially raise the same issue
of principle and can conveniently be considered together. Article 8 provides:
"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."
- Article 10 provides:
"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."
- It is submitted
on behalf of the appellants that a prosecution for committing a public
nuisance is
capable of resulting in a breach of Articles 8.1 or
10.1, that it is not a law which is sufficiently certain to justify interference
on the basis that it is either "in accordance with law" or "prescribed
by law" and that the interference is not "necessary in a democratic
society".
- We recognise
that the offence is capable of interfering with the rights protected by
Articles
8.1 and 10.1. In the ‘R’ appeal, the latter is clearly
exemplified. The question accordingly is whether or not the interference
can be justified under Articles 8.2 and 10.2. We consider that the question
of whether or not the interference was "in accordance with law" or "prescribed
by law" has been answered by our conclusion that there has been no breach
of Article 7, and the reasons which we have given for that conclusion. The
remaining question is, therefore, whether or not the offence can properly
be described as "necessary" in that it is intended to meet a pressing
social need of the sort identified in each of those Articles. In particular,
in relation to Article 10, we accept that the right to freedom of expression
includes the right to "offend, shock and disturb" as the Court
stated in Handyside –v- United Kingdom [1976] 1 EHRR 737 at paragraph
49. The jurisprudence of the Commission and the Court has, however, consistently
pointed out that in accordance with Article 10.2 a state can legitimately
impose limits to this freedom for the preservation of disorder or crime,
the protection of morals and for the protection of the rights and freedoms
of others. This includes the right of the public not to be outraged by the
public behaviour of others.
- In S and G –v- United Kingdom [2 September 1991, application No
17634/91] the Commission considered the common law offence of outraging public
decency committed by an artist and art gallery curator who had exhibited
a model with freeze dried human foetuses as earrings. The Commission, while
recognising that freedom of artistic expression fell within the ambit of
Article 10, declared the application inadmissible as being manifestly ill
founded. It found that the offence of outraging public decency: (a) was prescribed
by law, and (b) pursued the legitimate aim of protection of morals and (c)
was not disproportionate and could be regarded as necessary in a democratic
society.
- The Court subsequently considered the problem in the context of the law
of blasphemy. In Wingrove –v- United Kingdom 24 EHRR 1, the Court
held that the law of blasphemy, although imprecise, was nonetheless justified.
The applicant had been refused a certification certificate for his video "Visions
of Ecstasy" on the basis that it infringed the criminal law of blasphemy.
The Court found that the offence was prescribed by law and served the legitimate
aim of protecting the rights of others. The court held that the interference
with the applicants rights under Article 10 was not disproportionate and
could be regarded as necessary in a democratic society on the basis that:
"…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."
- In Muller –v- Switzerland [1991]
13 ECHRR 212, the Court considered a complaint that Article 10 had been
infringed by the applicant’s conviction
of an offence of publishing obscene items, consisting of paintings which
were said "mostly to offend the sense of sexual propriety of persons
of ordinary sensitivity". In holding that there was no breach of Article
10, the court said:
"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."
- In our view, the offence of causing a public nuisance is a proper and proportionate
response to the need to protect the public from acts, or omissions, which
substantially interfere with the comfort and convenience of the public as
being taken in the interests of public safety, for the prevention of disorder,
for the protection of health and morals, and in particular the need to protect
the rights of others. The level of imprecision inherent in the offence is
necessary to enable it to be applied flexibly to meet new situations. We
therefore reject the argument that the offence is capable of amounting to
a breach of Articles 8 or 10.
- We turn therefore to consider the individual appeals.
Rimmington
- The indictment as finally amended, charged the appellant as follows:
"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."
- The prosecution
case was that the letters identified in the indictment constituted a campaign
of a racial nature consisting as it did of letters
and packages containing seriously offensive remarks about racial minorities.
According to the evidence, recipients felt intimidated and harassed. The
material was clearly drafted to offend and to cause distress. When arrested
and interviewed the appellant said that his campaign had been precipitated
by a racially motivated assault upon him by a black male in 1992. He said
that following this incident, he decided that because he had been caused
physical anguish he was going to cause "them" mental anguish.
- The judge determined to hold a preliminary hearing under the provisions
of the Criminal Procedure Investigations Act 1996 on the basis that the indictment
revealed a case of such complexity or a case whose trial was likely to go
to such length that substantial benefits were likely to accrue from hearing
before the jury was sworn. He referred to the fact that, although the authorship
of the letters was not disputed, they filled seven lever arch files which
the jury, depending on his ruling, would have to consider. There would be
lengthy legal argument. As we understand it, neither the appellant nor the
respondent objected to this course, indeed both welcomed it.
- After hearing legal argument, the judge held, rightly as we have found,
that the offence of public nuisance was an offence known to common law and
its prosecution did not amount to a breach of any of the Article of the Convention
to which we have already referred. He concluded that the campaign was capable
of going beyond the dissemination of material expressing views which might
offend, shock or disturb, which a democratic society should permit and was
capable of amounting to a material interference with the comfort and convenience
of a substantial section of the population. In other words he concluded that
the evidence was capable, depending upon what view the jury took, of amounting
to the offence of public nuisance.
- Mr Eaton submits on behalf of the appellant that the judge was wrong to
come to that conclusion. He was not entitled to treat the 538 packages sent
over a period of nine years as one offence. Each document had to be considered
separately and as such could not amount to a public nuisance even if it might
have caused distress to the individual to whom it was sent. And taken individually,
each letter was merely an expression of opinion which was protected by Article
10. He further submitted that the indictment was bad for duplicity.
- We reject these submissions. The nuisance consisted of the campaign which
the appellant himself admitted was intended, at least in part, to cause mental
anguish. This court held in R –v- Johnson, to which we have already
referred, that such a campaign could justifiably be described as one public
nuisance. We see no reason for distinguishing the reasoning in that case.
It follows that the single charge is appropriate and not bad for duplicity.
Further, the nature of the contents of the letters and packages was such
that the jury, properly directed could conclude that it went beyond the limits
of what people in a democratic society can be expected to tolerate bearing
in mind the importance of freedom of expression, but amounted to an unreasonable
interference with the rights and comforts of others. This does not mean,
however, that the jury is itself required to carry out a balancing exercise
under Articles 8(2) and 10(2). As we have said, the offence is compatible
with Articles 8 and 10 if its ingredients are satisfied. We dismiss the appeal.
Goldstein
- This appellant
was charged in the indictment with causing a public nuisance by posting
a letter containing
salt. The appellant who was a supplier of
kosher foods in Manchester, owed money to one of his suppliers which was
owned by a friend called Abraham Erlich. He sent a cheque for the sum that
he owed in an ordinary brown envelope addressed to "Ibrahim Erlich" and
put into the envelope a small quantity of salt which he described as about
the size of half a smartie. It arrived at the sorting office at Wembley on
the 19th October 2001, some five weeks or so after the events
of the 11th September, and at the height of the anthrax scare.
At that time, it was thought, certainly by those working in the sorting office,
that two United States Postmen had died of anthrax poisoning.
- Mr Owen, the sorter, placed the envelope on its appropriate rack at which
point some of the salt leaked out through the unsealed part of the envelope
onto his hands. He was concerned that it might be anthrax or some other substance
and immediately reported it to his line manager. The envelope was placed
in a sealed bag and the building was evacuated. About 110 people worked there
at the time. The Special Unit created by the Metropolitan Police to deal
with such incidents was called. The officer in charge inspected the envelope
and its contents and was satisfied that the substance was salt. The workers
returned an hour to an hour and a half after they had first been evacuated.
Sufficient disruption was caused to result in the second delivery being cancelled
that day which resulted in a significant number of complaints, in particular
from businesses.
- The appellant’s explanation in interview was that it was intended as a
joke, and he would have expected the recipient to have taken it as a joke.
He accepted that he had deliberately addressed his friend as Ibrahin in order
to highlight the point. He said that he had no idea that the salt would leak
out, but accepted that the escape of the salt could have terrified the postal
worker in the light of the climate at the time.
- There are three
grounds of appeal which raise issues other than issues of principle with
which
we have already dealt. The first ground is that the
judge wrongly rejected the submission of no case to answer. It is submitted
on behalf of the appellant that the words in the definition requiring the
act to be "unwarranted" means that for the offence to be committed,
the act in question much be one in respect of which the court would be prepared
to grant an injunction. We find this argument difficult to follow. It begs
the question. If posting an envelope as the appellant did amounts to a public
nuisance, then we see no reason why an injunction would not lie. It merely
brings the argument back to the question of whether it amounts to a nuisance.
The phrase "not warranted by law" is there to provide an answer
to the charge wherever the act is done pursuant to a legal authority to do
so.
- The second ground or appeal relates to the summing up. It is accepted that
when directing the jury as to the actus reus of the offence, the judge correctly
summarised the elements of the offence. He however elaborated that direction
as follows at page 9.G.
"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."
- It is submitted
that this direction was confusing in that it added an unnecessary and unwarranted
ingredient to the offence. We agree that these passages are
capable of being confusing. They come in the part of the summing up in which
the judge was seeking to direct the jury as to the actus reus of the offence.
In doing so he appears to have conflated the actus reus and the mens rea.
But the fact of the matter is that the confusion was to the benefit of the
appellant. In fact all the jury had to be satisfied about in relation to
the actus reus was that the act had to be one whose effect "is to endanger
the comfort of the public, or obstructs the public in the exercise or enjoyment
of its rights which are common to all Her Majesty’s subjects ……" which
was the direction given to the jury in the first instance. It follows that
the jury could not have been confused in a way which was to the disadvantage
of the appellant, so as to undermine the safety of the conviction.
- The third ground of appeal was in the following terms:
"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."
- Mr Goldberg however, did not pursue this ground as drafted, but sought
to argue that the judge was wrong to direct the jury as he did that they
could convict on the basis that the appellant ought to have known that there
was a real risk that the consequences of his act would be to create a nuisance.
He accepts that the direction by the judge was in accordance with the decision
of this court in R –v- Shorrock. But he submits that we should depart
from that decision on the grounds that it was wrongly decided. He did not
develop this argument with any reasoned submissions. And, not surprisingly,
in the light of the way in which the grounds of appeal were drafted, and
in the absence of any indication that the point was to be taken in the skeleton
argument, Mr Perry for the respondent had not himself appreciated that the
point was going to be taken. Suffice it to say that we do not consider that
is any justification for this court departing from the decision in R –v-
Shorrock. In those circumstances this ground must also fail.
- It follows that the appeal is dismissed.