England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT & THE CENTRAL CRIMINAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		Friday 28th November 2003

Lord Justice Latham:

1. 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 25^th May 1992 and the 13^th 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 18^th 2001, at the height of the security alerts after the events of September 11^th 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.
2. 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.
3. 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."

4. This definition is taken from Stephen's Digest of the Criminal Law, 9^th 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."

5. This latter definition is the one adopted in the 10^th 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."

6. 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."

7. 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.
8. 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.
9. 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."

10. 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.
11. 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 5½ 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."

12. 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"

13. 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…."

14. 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."

15. 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."

16. 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."

17. 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.
18. 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."

19. 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."

20. 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".
21. 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.
22. 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.
23. 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."

24. 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."

25. 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.
26. We turn therefore to consider the individual appeals.

R

27. The indictment as finally amended, charged the appellant as follows:

"Between 20^th May 1992 and 13^th 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."

28. 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.
29. 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.
30. 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.
31. 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.
32. 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

33. 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 19^th October 2001, some five weeks or so after the events of the 11^th 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.
34. 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.
35. 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.
36. 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.
37. 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."

38. 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.
39. 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."

40. 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.
41. It follows that the appeal is dismissed.
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LORD JUSTICE LATHAM: For the reasons given in a judgment, copies of which have been provided to the parties and which we now hand down, the appeals in both cases are dismissed.

MR GOLDBERG: My Lords, the two items remaining to decide are, firstly, an application which I make for Goldstein and which I understand will also be made for R for leave to appeal to the House of Lords and, of course, for your Lordships to certify relevant questions.

LORD JUSTICE LATHAM: We have seen your proposed questions. We have not in fact heard from the prosecution as to whether or not there have any representations which they wish to make.

MR GOLDBERG: Yes.

MR RAINSFORD: I can deal with that very briefly indeed, my Lord. The only possible substantive point, we would submit, would be the Shorrock mens rea point, which does not arise out of the judgment. As your Lordship knows, before the House of Lords would want to consider an appeal on such a basis they would want a fully considered judgment from this court.

LORD JUSTICE LATHAM: Yes.

MR RAINSFORD: And we do resist the application accordingly.

LORD JUSTICE LATHAM: Mr Goldberg, there is a problem, in that your argument was not developed: you simply indicated to us by submission in relation to the case of Spencer that we might have power to depart from Shorrock, but beyond that the argument never went.

MR GOLDBERG: My Lord, other than recent dicta in the House of Lords there is little one can add. Shorrock is either right or it is wrong. The spirit of the law has changed, as indicated by the dicta in the case of G, to which I referred your Lordship. But the issue is simple: is it right or is it wrong? In a sense the court is bound by that decision and there is little more that could be said.

LORD JUSTICE LATHAM: There are quite a few problems, it seems to me, that need to be teased out in that particular area because the basis of the Shorrock decision was the relationship of public nuisance to private nuisance, which may be an area of some interest to their Lordships and might have been helped by some detailed argument which we did not have. You submit that the points of law to be certified should include, if there are any, the Shorrock point?

MR GOLDBERG: My Lord, yes. But with great respect to what Mr Rainsford has just said, I do not understand why he says there are no substantive grounds of appeal because of course your Lordships have decided the way in which the human rights legislation applies to public nuisance, and that is new.

LORD JUSTICE LATHAM: Yes.

MR GOLDBERG: Unless you want me to develop that, I would argue it speaks for itself. Your Lordships' judgment is an important judgment and a new judgment in this field.

LORD JUSTICE LATHAM: Are there any other submissions in support of Mr Goldberg?

MISS BLACKBURN: I simply adopt the position as pointed out in the certified points.

LORD JUSTICE LATHAM: Yes.

(The Bench conferred.)

LORD JUSTICE LATHAM: Mr Goldberg, we do consider that there are some issues which can properly be certified, but we are not convinced that as drafted by you they really are an appropriate set of questions. What we would suggest is, for your consideration, that we keep the question 1 as drafted:

"Is the mens rea requirement of the common law offence of causing a public nuisance satisfied by proving that the defendant either knew or ought to have known, in the sense that the means of knowledge were available to him, that there was a real risk that the consequence of his actions would be to create the sort of nuisance that in fact occurred?"

The second question should be:

"If not, what is the mens rea?"

MR GOLDBERG: Yes.

LORD JUSTICE LATHAM: Then the next questions should, in our view, be formulated in the following way. The third question is:

"Is the offence of causing a public nuisance as currently defined compatible with Articles 7, 8 and 10 of the European Convention on Human Rights, or does the question of compatibility fall to be decided on the facts of the particular public nuisance alleged to have been caused?"

Fourth:

"If the latter, is it for the jury or the judge alone to decide the issue of compatibility?"

That wraps up the issues that you had in mind.

MR GOLDBERG: I agree.

LORD JUSTICE LATHAM: We would be prepared to certify those questions, but we refuse leave to appeal.

MR GOLDBERG: Does your Lordship possibly have those questions reduced to writing, because, if so, a copy would be very gratefully received so we have them exactly?

LORD JUSTICE LATHAM: Yes.

MR RAINSFORD: May I raise one matter, please?

LORD JUSTICE LATHAM: Yes.

MR RAINSFORD: It is the issue of publicity, which of course normally under section 37(1) of the CPIA is prima facie forbidden. Mr Perry has asked me to mention to the court that he submits that it may be of considerable use for the judgment to be circulated at the present time and there would be no prejudice to either defendant.

LORD JUSTICE LATHAM: I suppose because the two are wrapped up together, it means that the Goldstein judgment cannot be shelled out from the R judgment.

MR RAINSFORD: It could be redacted but it would be very difficult, I respectfully agree.

LORD JUSTICE LATHAM: Miss Blackburn, this affects your client; have you any submissions as to that?

MISS BLACKBURN: The only submission I can make is that I have spoken to Mr Eaton and the decision was that perhaps his name could be protected and it could be reported simply by way of an initial.

LORD JUSTICE LATHAM: That seems to be a satisfactory solution, does it not?

MR RAINSFORD: It does indeed, I respectfully agree.

LORD JUSTICE LATHAM: So we will deal with it in that way.

MR RAINSFORD: Thank you very much. There are no issues as to costs in either appeal.

LORD JUSTICE LATHAM: As far as costs are concerned, there is an issue of public funding costs. Mr Goldberg, what do you say?

MR GOLDBERG: I hope that there has reached your Lordships shortly before you came into court an unreported decision --

LORD JUSTICE LATHAM: The judgment of the Lord Chief Justice?

MR GOLDBERG: Yes. I am grateful to my learned friend Mr Grant, who found it this morning on the internet. We would submit that the guidance there given that you do not, in effect -- if I can put this into my own words -- want to deter a perfectly proper appeal, is very much in point in today's case. This is a case where leave was given by Leveson J, saying -- if I can remind you -- that "the true ingredients of the offence are in issue and in the circumstances it is appropriate to allow you to argue your grounds of appeal"; and, of course, questions have been certified for the House of Lords and the judgment itself is plain in covering important new ground.

LORD JUSTICE LATHAM: As far as your client's means are concerned, has there been an assessment of his means?

MR GOLDBERG: There has been no assessment. He has filled in a form and I can help your Lordships about his means.

LORD JUSTICE LATHAM: First of all, can we start at the beginning? Was he publicly funded for the purposes of the trial?

MR GOLDBERG: No, he paid privately for his trial and his total fees were £35,000.

LORD JUSTICE LATHAM: Yes.

MR GOLDBERG: And, indeed, he paid prosecution costs of £1,850 below, all of that paid.

My Lords, he is a respectable small businessman of hitherto good character. He earns £52,000 a year - that is what is on his tax return for the last year in which he has done his returns, which is the year ending 2002. He has six children of his own, but he supports the two children of his deceased brother in addition. So there are eight children. He has the equity in his home, which one would expect, and he had about £70,000 in savings. But, other than that, he is a hard-working small businessman. We would submit that it is just the sort of case Lord Woolf had in mind. He was worried about bringing this appeal, can I tell you, because of this exact point. In our submission one is entitled to look at the merits of the case, at how arguable it was, and, indeed, the terms in which he was given leave. If I were wrong in that, can I invite you to at least cap the costs at a total figure?

You would certainly have the power, as I see it, if I can just briefly refer you to the two relevant regulations. It is page 908 of the latest Archbold, paragraph 6-268. I will take you straight to the two regulations that seem to us in point. Regulation 3:

"Where an individual receives representation in respect of criminal proceedings which is funded by the Lord Chancellor ... the court before which the proceedings are heard ..."

LORD JUSTICE LATHAM: "... some or all the costs", yes.

MR GOLDBERG:

"... may make an order for recovery of defence costs order."

The only other guidance is over the page there, regulation 12, 6-277:

"Where the judge considers that it is or may be reasonable to make a recovery of defence costs order, he may make the order."

So the test is reasonable. It is obviously a very wide discretion. Is it reasonable in this case where you have what I would call a middle class person who in a sense falls into the income trap, who has --

LORD JUSTICE LATHAM: Yes, I think we have your point, Mr Goldberg.

MR GOLDBERG: Yes.

LORD JUSTICE LATHAM: I do not think it can really be elaborated.

MR GOLDBERG: No. I rely therefore on Lord Woolf's dicta.

LORD JUSTICE LATHAM: We will retire.

(The court adjourned for a short time.)

LORD JUSTICE LATHAM: In the circumstances of this case, although the court clearly has the power here to make a recovery of defence costs order, we do not consider it necessary to make such an order in this case, it being a case in which issues of principle have been raised and have been considered by us to be sufficiently significant to certify questions for the House of Lords. In those circumstances, no order is made.

MR GOLDBERG: I am obliged. My Lords, there only remains the written questions which seem to have disappeared.

MR JUSTICE MOSES: I handed them down.

MR GOLDBERG: I am very grateful, my Lord, thank you.

LORD JUSTICE LATHAM: If you can make sure they are reduced into a form which can be handed into the court.

MR GOLDBERG: Yes, we will write them out and supply them to your Lordships.

LORD JUSTICE LATHAM: Thank you very much.

The Court certified the following questions as involving points of law of general public importance but refused the grant of leave to appeal to the House of Lords:

1. Is the mens rea requirement of the common law offence of causing a public nuisance satisfied by proving that the defendant either knew or ought to have known, in the sense that the means of knowledge were available to him, that there was a real risk that the consequence of his actions would be to create the sort of nuisance that in fact occurred? (as per R v Shorrock [1994] QB 279).

2. If not, what is the mens rea?

3. Is the offence of causing a public nuisance as currently defined compatible with Articles 7, 8 and 10 of the European Convention on Human Rights, or does the question of compatibility fall to be decided on the facts of the particular public nuisance alleged to have been caused?

4. If the latter, is it for the jury or the judge alone to decide the issues of compatibility?