DPP v Fearon [2010] EWHC 340 (Admin)

Case No CO/4241/2009[2010] EWHC 340 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 10th February 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE ELIAS
MR JUSTICE CALVERT SMITH
Between
DPPClaimantv
Between
BARRINGTON FEARONDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR J FOUNTAIN (instructed by CPS NOTTINGHAM) appeared for ClaimantMR N LODGE (instructed by BHATIA BEST NOTTINGHAM) appeared for Defendant
J U D G M E N T

LORD JUSTICE ELIAS:

[1]This is an appeal by way of Case Stated from a decision of Stobart DJ in the Local Justice Area of Nottingham. The relevant facts are agreed between the parties. They fall within an extremely short compass identified by the judge as follows: a) On Friday 25 July 2008 a female under cover police officer known as Sarah was deployed on the corner of Vickers Street and Mapperley Road, Nottingham; b) Mapperley Road and its associated side roads are of part of the Nottingham vice area; c) Sarah was approached by the respondent and solicited for sex. He was on foot. Having agreed on the price he asked Sarah to walk down Vickers Street.[2]On the basis of these facts Barrington Fearon was charged with causing nuisance to the public by soliciting a female for the purpose of prostitution on a public highway contrary to the common law. This was, in other words, attempting to cover the common law offence of public nuisance. The judge had to determine as a preliminary issue whether the offence of public nuisance could be made out on these facts. He held that it could not. He was not satisfied that the facts fell within the definition of the crime as approved by the House of Lords in the recent decision of Rimmington [2005] UKHL 62 [2006] 1 Criminal Appeal Reports 17. The judge agreed to pose the following question for the opinion of the court, namely:
"Whether a single act by a male on foot soliciting a woman to prostitution within a recognised vice area can amount in law to the common law offence of public nuisance."
[3]Certain acts of sexual solicitation are rendered unlawful in particular circumstances. Section 1 of the Sexual Offences Act 1985 creates the offence of kerb-crawling, which in broad terms involves persistent or annoying solicitation from motor cars.[4]Section 2 is headed, "persistent soliciting of women for the purpose of prostitution" and makes it an offence:
"if in a street or public place he persistently solicits a woman (or different women) for the purposes of prostitution."
[5]Section 2 is not of course applicable on the facts of this case because there is no evidence of any persistent solicitation, hence the reason, no doubt, why the CPS sought to resort to the common law offence.[6]The starting point is the definition of public nuisance. In Rimmington, Lord Bingham of Cornhill analysed the history of the crime and trawled through a wealth of material from other jurisdictions which had formulated the definition of public nuisance in different ways. He accepted, however, that the following is an accurate definition of the crime, amongst a number of others (paragraph 10 read with para.36):
"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."
[7]I will assume that the act of solicitation is not warranted by law within the meaning of that definition. The issue is whether it endangers the comfort of the public or in some way obstructs them in the exercise or enjoyment of their rights.[8]Rimmington emphasises the importance of establishing the public nature of nuisance. Lord Bingham noted at paragraph 13 and following paragraphs that typically it covers making noise or emanating smells, spreading a contagious disease or otherwise causing damage to the environment. A recent illustration for that is the decision of the Court of Appeal in Attorney General v PYA Quarries Ltd [1957] 2 QBD169 where quarrying activities caused stones and splinters to be discharged in the neighbourhood, thereby causing dust and vibrations.[9]Importantly, their Lordships also overruled a number of decisions including Norbury [1978] Criminal Law Reports 435, and Johnson [1997] 1 Weekly Law Reports 367 which had held the making of nuisance telephone calls - in both those cases obscene ones - to a sufficiently large number of persons could constitute a crime. Lord Bingham said(paragraph 7):
"Central to the concept of the crime was common injury by members of the public by interference of the rights enjoyed by them as such. Successive phone calls to different victims did not meet that requirement."
[10]As Baroness Hale succinctly put it at paragraph 58:
"It is not permissible to multiply separate instances of harm suffered by individual members of the public, however similar the harm or the conduct which produced it, and call them a common injury."
[11]In my view, there is no conceivable basis for saying that any common injury is sustained here if one focuses simply on this defendant approaching a single woman. Indeed, in view of the rejection of a series of individual acts as common injury, it would not even be a common or public nuisance to approach lots of women (although of course that would probably constitute a separate offence under Section 2 of the Sexual Offences Act.)[12]How then, does the prosecution seek to bring the act within the scope of the crime? The answer is by contending that the situation is different from the single act because it was committed within the vice area of Nottingham. The argument is that the individual act of this defendant must be seen in the context of the fact that there are lots of similar wholly independent acts committed by others, but that the consequence of all these acts taken together is to cause a nuisance to the public.[13]I will assume that the defendant knew that this was a vice area, and he probably did, although there was no finding to that effect. Nevertheless, I consider the submission to be quite hopeless. Unless Parliament stipulates otherwise, a defendant does not become criminally liable because of the acts of others. It is not alleged that there is a conspiracy or a joint enterprise or anything of that nature. Single otherwise lawful acts do not become criminal because a defendant knows or ought to know that others are carrying out or are likely to be carrying out similar otherwise lawful activities. This is an attempt by the prosecution to have conduct which they consider to be reprehensible to be declared criminal. Furthermore they seek to do this by what is in my judgment a highly artificial and unprincipled extension of established doctrine. The courts should have no truck with it, and I do not.[14]I should add that, in my judgment, the appeal arguably fails for another reason also, but it was not argued before the judge below and I reach no concluded view on it. As Lord Bingham held in Rimmington it will rarely be appropriate to prosecute for this common law offence where it falls within the terms of a specific statutory provision. As I have said, Section 2 of the Sexual Offences Act provides the conduct of this nature is only unlawful where it is persistent. It would certainly circumvent that limitation if the argument were correct, albeit that it would only do so in a vice area, however that is defined. One would then also be left with the curious situation that the conduct of persistent solicitation would attract a limited penalty whereas the single act of solicitation, being a crime under the common law offence of public nuisance, would attract if tried on indictment a sentence at the discretion of the court.[15]It follows that, in my judgment, the appeal fails. I would therefore answer the question posed by the judge in the negative; a single act by a male on foot of soliciting a woman for prostitution within a recognised vice area cannot amount in law to the common law offence of public nuisance.

MR JUSTICE CALVERT SMITH: I agree.

[17]MR LODGE: I have no applications, my Lord.

LORD JUSTICE ELIAS: Thank you.