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Royal Courts of Justice

Strand

London WC2A 2LL

Tuesday 14th May 1996

B e f o r e:

LORD JUSTICE SWINTON THOMAS

MR JUSTICE TUCKER

and

MR JUSTICE DOUGLAS BROWN

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R E G I N A

- V -

ANTHONY THOMAS JOHNSON

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(Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR J BUCHAN (MR R HOWARTH, 25.4.96) appeared on behalf of the Appellant

MR LD HULL appeared on behalf of the Crown

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J U D G M E N T

(As Approved by the Court)

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Tuesday 14th May 1996

JUDGMENT

LORD JUSTICE SWINTON THOMAS: Mr Justice Tucker will give the judgment of the Court.

MR JUSTICE TUCKER: The appellant was convicted at the Crown Court at Preston 22nd September 1995. He now appeals against that conviction pursuant to the certificate of the trial Judge.

The Judge's certificate is in these terms: Whether the conduct of the defendant as described in the statements of the prosecution witnesses is capable in law of amounting to a public nuisance.

The appellant was charged in an Indictment containing one count - public nuisance, a common law offence.

The particulars are that over a period of about 5 1/2 years between September 1988 and May 1994 he caused a public nuisance by using the public telephone system to cause nuisance, annoyance, harassment, alarm and distress. The case arose out of telephone calls made on hundreds of occasions to at least 13 different women in the South Cumbria area. They were calls of an obscene nature. There is no doubt that the effect of those calls was such as to cause nuisance to the recipients. On the evidence, the appellant caused that nuisance. It was a persistent nuisance. The question for our decision is whether it was a public nuisance.

This is another case where this Court has been confronted with the problem of applying to developing systems of telecommunications, law which has evolved over a number of years. In particular, the Court has to consider the opportunities which such communications give to wrong thinking people to intrude upon the privacy of innocent women in their own homes and to make calls which the recipient finds offensive, obscene or frightening, or, in the words of indictment, calls which are a nuisance, annoying, harassing, alarming, or distressing.

There is a statutory offence created by section 43 of the Telecommunications Act 1984. It is a summary offence and is subject to a time limit of 12 months. Prior to January 1995 such an offence could not be punished by imprisonment, but thereafter there is power to imprison for up to six months.

This is not the first occasion on which the making of obscene or threatening telephone calls has been charged as an offence of committing a public nuisance. In the case of R. v. Wadland , the defendant, on 5th October 1992, pleaded guilty to such a charge before His Honour Judge Hall in the Crown Court at Northampton. When the case came before a division of this Court presided over by Glidewell LJ on 18th November 1993 on an appeal against sentence, the Court, in dismissing the appeal, said nothing to suggest that the charge was inappropriate. The basis of the charge was described by prosecuting counsel in the Crown Court in these terms:

"The indictment deals with calls made to nine women between December 1988 and March 1992 and are specimen counts. Count 16 is an allegation of public nuisance to reflect the broad spectrum of the defendant's activities and to embrace charges where perhaps a specific threat to kill was not made and also to reflect the obscene nature of the telephone calls."

In fact, over 270 women had received such calls from the defendant between December 1988 and March 1992.

In R. v. Norbury (1978) CLR 435, His Honour Judge Beezley, at Norwich Crown Court, held that 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, is the very kind of act, and, indeed the very kind of series of acts, which the public has an interest in condemning and has a right to vindicate. That was a case where, between July 1972 and November 1976, 494 women resident in Norfolk reported to the police a total of 605 obscene telephone calls apparently from a single caller.

In the case of R. v. Millward (1986) 8 Cr.App.R.(S.) 209, only one woman was concerned. But over a period of nearly two years the appellant made thousands of telephone calls to her at the police station where she was employed. On one day a total of 636 calls were made. The appellant pleaded guilty to two counts of public nuisance. This Court (again presided over by Glidewell LJ), when considering sentence, said nothing to suggest that the charges were inappropriate. We recognise that there was a separate and distinguishing feature in that case in that the whole operation of the police station was disrupted, and a member of the public wishing to report a criminal offence or some other urgent matter might be prevented or delayed from doing so.

The offence of public nuisance has been defined in two cases to which we have been referred. The first of these is Attorney-General v. PYA Quarries Ltd. (1957) l All ER 894. Romer LJ said this at page 902:

"I do not propose to attempt a more precise definition of a public nuisance than those which emerge from the text-books and authorities to which I have referred. It is, however, clear, in my opinion, that any nuisance is 'public' which materially affects the reasonable comfort and convenience 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 been so affected for an injunction to issue."

Denning LJ said, at page 908:

"I entirely agree with the judgment of Romer, L.J., and have little to add. Counsel for the defendants raised at the outset this question: What is the difference between a public nuisance and a private nuisance? He 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 widespread 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 it, but that it should be taken on the responsibility of the community at large. ...

But an isolated act may amount to a public nuisance if it is done in such circumstances that the public right to condemn it should be vindicated."

The second case is R. v. Madden (1975) 61 Cr.App.R. 254, where James LJ said, at page 256:

"It is, in our view, still an offence known to the law of this country to commit a public nuisance. A person who makes a bogus telephone call falsely giving information as to the presence of explosives may, in our view, if there is evidence, be shown to have committed an offence of public nuisance. In this particular case the conviction must be quashed on two grounds. Firstly, the directions which the learned Recorder was persuaded by the Crown to give to the jury were not right in that those directions invited the jury to consider the potential danger to the public rather than the actual danger and the potential risk to the comfort of the public as distinct from the actual comfort of the public. Secondly, on the evidence which I have recited, it was not possible for a jury, properly directed, to have arrived at the conclusion that a considerable number of persons were affected by the action of the appellant.It is quite clear that for a public nuisance to be proved, it must be proved by the Crown that the public, which means a considerable number of persons or a section of the public, was affected, as distinct from individual persons."

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.

Second, 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 permissable and necessary to look at the cumulative affect of these calls, made to numerous ladies on numerous occasions in the case of each lady, and to have regard to the cumulative affect 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'subjects (see Romer LJ in Attorney-General v. PYA Quarries Ltd ) It was a nuisance which was so widespread in its range, or so indiscriminate in its effect, that it would not be reasonable to expect one person to take proceedings on her responsibility, but that it should be taken on the responsibility of the community at large (see Denning LJ ibid). 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 position is not affected by the fact that the appellant had met a number of the complainants or had acquired knowledge of their telephone numbers by reason of having carried out work at their homes, nor by the fact that he had met other ladies socially. In our judgment, if the scale of the undoubted nuisance is sufficient, then it is capable in law of constituting a public nuisance.

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 these 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.

Our answer to the question posed in the judge's certificate is YES. Accordingly, this appeal is dismissed.