R v Rimmington; R v Goldstein [2005] UKHL 63

The House of Lords held that public nuisance requires common injury to the public, not merely multiple harms to individuals. It disapproved earlier telephone‑call cases, emphasised legal certainty under article 7 ECHR, and allowed both appeals, quashing Mr Goldstein’s conviction and Mr Rimmington’s indictment.

Facts

Rimmington

Mr Rimmington was indicted on a single count of common law public nuisance. The particulars alleged that he:

“between the 25th day of May 1992 and the 13th day of June 2001, caused a nuisance to the public, namely by sending 538 separate postal packages, as detailed in the schedule …, containing racially offensive material to members of the public selected by reason of their perceived ethnicity or for their support for such a group or randomly selected in an attempt to gain support for his views, the effect of which was to cause annoyance, harassment, alarm and/or distress.”

He sent strongly racist, crude and sometimes threatening communications to numerous recipients, some prominent. On arrest he indicated his campaign was retaliation for a racially motivated assault and that he aimed to cause “them” mental anguish.

Leveson J held, after a preparatory hearing, that the indictment disclosed a known common law offence of public nuisance and was compatible with the European Convention. The Court of Appeal dismissed his appeal and that of Mr Goldstein.

Goldstein

Mr Goldstein, an ultra‑orthodox Jewish supplier of kosher foods, owed money to a friend and supplier, Mr Abraham Ehrlich. As a joke referring both to the age of the debt and to the contemporary anthrax scare, he posted a cheque with a small quantity of salt in the envelope, addressed to “Ibrahim Ehrlich”. Mr Ehrlich’s unchallenged evidence was that he would have recognised the joke had he received it.

The envelope tore at Wembley Sorting Office, some salt leaked onto a postal worker’s hands and, in the context of anthrax fears, an alarm was raised. About 110 workers were evacuated for about an hour, the second delivery was cancelled and police attended before confirming the substance was salt.

He was indicted on a single count of public nuisance, namely that he:

“between the 16th day of October 2001 and the 20th day of October 2001 caused a nuisance to the public by posting or causing to be posted, an envelope containing salt to Unit 36, Northend Road, Wembley.”

He was convicted after trial at Southwark Crown Court and sentenced to a community punishment order with compensation and costs. The Court of Appeal dismissed his appeal.

Issues

Scope and definition of public nuisance

The appeals raised:

• How the common law crime of causing a public nuisance is defined and what its essential ingredients are in modern law.
• Whether campaigns involving multiple separate communications to individuals (telephone calls or letters) can amount to public nuisance by aggregation.
• Whether the offence, as applied, is too imprecise and uncertain to satisfy the common law principle of legality and article 7 of the European Convention on Human Rights.
• What mens rea is required for the offence, particularly in relation to unintended consequences (Goldstein).
• When prosecutors should rely on public nuisance instead of specific statutory offences covering similar conduct.

Judgment

Nature and historical development of public nuisance

Lord Bingham traced the distinction between private and public (or common) nuisance. Private nuisance protects an occupier’s enjoyment of land. Public nuisance developed to criminalise conduct which injures the community as such, particularly interference with public rights (e.g. highways or navigable rivers). He described this central element as the “requirement of common injury”.

He reviewed classic definitions, emphasising that they all incorporate this public element. Hawkins defined a common nuisance as:

“an Offence against the Publick, either by doing a Thing which tends to the Annoyance of all the King’s Subjects, or by neglecting to do a Thing which the common Good requires.”

Blackstone described public nuisances as:

“such inconvenient or troublesome offences, as annoy the whole community in general, and not merely some particular person; and therefore are indictable only, and not actionable; as it would be unreasonable to multiply suits, by giving every man a separate right of action, for what damnifies him in common only with the rest of his fellow subjects.”

Archbold’s modern definition, quoted and broadly approved (without the reference to morals), was:

“A person is guilty of a public nuisance (also known as 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 of rights common to all Her Majesty’s subjects.”

Lord Rodger likewise adopted that definition, omitting “morals”.

The House noted similar codified formulations in Canada, Queensland and Tasmania, all of which emphasise endangerment or obstruction affecting “the public” or “any right common” to all subjects.

Requirement of common injury

Lord Bingham treated the requirement that the injury be common to the public, or a class of the public, as the defining feature of the offence. Earlier authorities on stinking manufactories, disease on the highway, pollution of rivers, and similar examples were reviewed as paradigms where the public, or a clear section of it, was affected.

In Attorney General v PYA Quarries Ltd Romer LJ’s widely‑cited statement was endorsed that:

“any nuisance is ‘public’ which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.”

But Lord Bingham and Lord Rodger stressed that this class‑wide effect must arise from the particular act or omission itself, rather than from a mere aggregation of distinct wrongs to individuals.

Critique of the “telephone call” line of cases

The Crown relied on cases where repeated obscene or threatening telephone calls had been prosecuted as public nuisance, beginning with R v Norbury and including R v Johnson (Anthony) and later sentencing appeals.

In Norbury the judge had described public nuisance as constituted by:

“a repetition over a long period and on a number of occasions of telephone calls of an obscene nature, intending to cause offence and alarm and resulting in such offence and alarm to a large number of Her Majesty’s subjects, selected from a telephone directory or merely by chance dialling …”

Lord Bingham held that these decisions misapplied public nuisance by treating a series of separate harms to individuals as if collectively constituting a single public injury. This contradicted the rationale of the offence and, in Convention terms, altered its “essential constituent elements” to the detriment of the accused. He considered that this approach effectively re‑invented the abolished offence of public mischief under another label.

Lord Rodger similarly considered that each obscene call to an individual did not, in itself, affect the community, and that it could not retrospectively become part of a public nuisance merely by accumulation. He concluded that Norbury and Johnson were wrongly decided and should be overruled.

Relationship with statutory offences and prosecutorial choice

The House accepted that many classic public nuisance situations are now covered by detailed statutory regimes: environmental and statutory nuisances, water pollution, highway obstruction, harassment, racially aggravated harassment, raves, bomb hoaxes, hazardous substances in the post, malicious communications and misuse of communications networks.

Lord Bingham acknowledged “a large measure of truth” in the contention that such statutes have occupied the traditional ground of public nuisance. He stated that where Parliament has specifically defined an offence and prescribed trial mode and penalties, conduct falling within that definition should ordinarily be prosecuted under the statute rather than as a broadly expressed common law crime. He noted that using public nuisance to avoid statutory time‑limits or penalty caps would undermine Parliament’s judgment.

Lord Rodger, dealing directly with prosecutorial practice in relation to Mr Rimmington, considered that the Crown had consciously chosen the common law offence to evade statutory limitation periods and sentencing constraints. He held that while the common law charge is not inherently invalid where overlapping statutory offences exist, the Crown should not “devise a strategy” to circumvent the time‑limits and penalty structure deliberately enacted by Parliament.

Baroness Hale referred to the Law Commission’s work on poison‑pen letters, which had led to the Malicious Communications Act 1988. She observed that public nuisance had not been proposed there as an appropriate vehicle for such campaigns, despite the Commission’s awareness of cases like Norbury. She regarded this as confirmation that public nuisance should not be stretched to cover multiple malicious communications.

Principle of legality and Article 7 ECHR

Lord Bingham examined the domestic principle of legal certainty and article 7 ECHR. He adopted the analysis in R v Misra and Srivastava, including the need for sufficient certainty, accessibility and foreseeability, and the prohibition on retrospective creation or extensive analogical expansion of criminal offences.

He summarised that no one should be punished unless a law is sufficiently clear to enable him to know in advance what conduct is forbidden, and that existing offences cannot be enlarged in a manner inconsistent with their essence.

He considered that, as defined in Stephen, in Archbold (excluding “morals”), in related Commonwealth codes and in traditional English cases (apart from Soul), the offence of public nuisance was clear and intelligible. An adviser could ascertain whether an act was likely to inflict significant injury on a substantial section of the public exercising ordinary rights.

However, as interpreted in the telephone‑call line of cases and similar decisions, the offence had become over‑broad and uncertain, lacking the clarity and precision required by common law and Convention jurisprudence. The aggregation approach impermissibly altered the essential structure of the offence.

Mens rea for public nuisance

The key mens rea question arose in relation to Mr Goldstein. The Crown relied on the test in R v Shorrock, where the Court of Appeal held a defendant liable if he knew or ought to have known, in the sense that the means of knowledge were available, that there was a real risk that his conduct would create the type of nuisance that occurred. Lord Bingham accepted this as the correct mens rea test for public nuisance, subject to its application to the right factual consequences.

He noted that this standard was satisfied in traditional public nuisance authorities, except in older cases of vicarious liability such as R v Stephens, whose strictness was explained by its quasi‑civil character and is difficult to reconcile with modern approaches to mens rea when severe penalties may arise.

Lord Rodger rejected the invitation to align public nuisance mens rea with the subjective recklessness test in R v G, stressing that G concerned the meaning of “reckless” in a specific statute and had explicitly not addressed other contexts. Given the regulatory nature of much public nuisance law, he regarded the Shorrock standard as appropriate.

Application to Rimmington

The House held that, even assuming all alleged facts to be true, Mr Rimmington’s conduct did not satisfy the requirement of common injury. Each offensive postal packet affected an individual recipient; there was no singular act or omission causing a shared interference with a public right or a communal interest.

Lord Bingham rejected the Crown’s argument that the step from telephone calls (if properly treated as public nuisance) to postal communications was small and foreseeable. Because the telephone‑call cases themselves had wrongly extended the offence, no further extension could be justified. To aggregate numerous separate harms to individuals into a single public nuisance would violate both the traditional rationale of the offence and article 7.

Lord Rodger emphasised the practical difficulty and uncertainty of identifying the point at which a sequence of letters over nine years, sent to unconnected recipients across different areas, could retrospectively be declared a public nuisance beginning with the first letter. Defining the offence to operate in this way would be objectionable in domestic and Convention terms.

The indictment therefore did not disclose a legally relevant count of public nuisance. His appeal was allowed.

Application to Goldstein

For Mr Goldstein, the key issue was whether he had the requisite mens rea concerning the consequences that allegedly constituted the public nuisance: evacuation of the sorting office, disruption to 110 workers, and cancellation of the second postal delivery affecting a substantial number of businesses and others.

Lord Bingham was prepared to assume (without deciding) that such disruption could amount to a public nuisance. However, he held that the essential element of knowledge (or means of knowledge) was not proved. Mr Goldstein did not intend the salt to escape and, on the evidence, had no reason to foresee leakage through the envelope; indeed, such leakage would have undermined the intended private joke.

Further, the evacuation and especially the cancellation of the second delivery depended on independent decisions of postal management responding to perceived risk and cost, not on consequences that Mr Goldstein knew or ought reasonably to have foreseen when posting the letter. Lord Rodger noted that the public inconvenience relied upon by the prosecution was not an immediate consequence of his act but the result of a commercial decision about overtime.

Applying the Shorrock test, the House concluded that he neither knew nor had the means of knowing that the salt would escape and lead to the scale of disruption alleged. Therefore, the necessary mens rea for public nuisance was lacking. His conviction was quashed.

Other observations

Lord Nicholls added a short clarification about hoax messages. He distinguished hoaxes that inconvenience only the immediate recipient from hoaxes about public dangers (such as bomb threats to a railway station), noting that the latter may be capable of constituting public nuisance even if communicated to a single person, because they are intended to be relayed so as to cause public alarm and disruption.

Baroness Hale underlined that courts cannot abolish offences or widen them to cover conduct hitherto non‑criminal. Their task is to re‑assert the post‑Hawkins essence of public nuisance: common injury to members of the public through interference with rights enjoyed by them as such. She observed that multiplying similar harms to individuals cannot be transmuted into a public nuisance without violating legality principles.

Implications

The decision significantly narrows and clarifies the common law offence of public nuisance:

• Public nuisance requires a common injury to the community or a class of the public in their capacity as members of the public. It cannot be constructed by aggregating multiple separate wrongs to individuals.
• The line of cases treating campaigns of obscene or threatening telephone calls as public nuisance was disapproved and effectively overruled; similar indictments based on multiple letters or calls are not sustainable under public nuisance.
• Mens rea for public nuisance follows the Shorrock standard: the defendant must know, or ought to know because the means of knowledge are available, that his act or omission carries a real risk of the type of public harm that occurred.
• Prosecutors should ordinarily prefer specific statutory offences where Parliament has legislated (e.g. for malicious communications, postal offences, hoaxes, environmental and highway nuisances). Resort to common law public nuisance to evade statutory time‑limits or sentencing regimes is improper.
• The judgment aligns public nuisance with principles of legal certainty and article 7 ECHR, confirming that common law offences may develop only incrementally and consistently with their core elements.

Public nuisance remains a valid but exceptional common law offence, applicable primarily where no suitable statutory provision exists and where there is a clear, shared interference with public rights or interests, rather than merely multiple individual harms.

Verdict: Both appeals were allowed: the public nuisance indictment against Mr Rimmington was held not to disclose the offence and could not stand, and Mr Goldstein’s conviction for public nuisance was quashed for lack of the requisite mens rea.

Source: R v Rimmington; R v Goldstein [2005] UKHL 63