The Court of Appeal held that hundreds of obscene telephone calls made to thirteen different women constituted a public nuisance. By applying a “cumulative effect” test, the court determined the conduct affected a section of the public rather than just isolated individuals. However, this reasoning was later overruled for contradicting the rationale of the offence.
The defendant, Anthony Johnson, was charged with one count of public nuisance. The particulars of the offense involved making telephone calls on hundreds of occasions to at least 13 women in the South Cumbria area. These calls were described as threatening and arguably obscene. The defendant was convicted at trial and subsequently appealed, contending that such conduct directed at individuals did not legally amount to the crime of public nuisance.
- Individual vs. Public Injury: Whether a series of isolated acts directed at separate individuals can be aggregated to constitute a “common injury” to the public.
- Cumulative Effect: Whether it is permissible to look at the cumulative effect of hundreds of calls to determine if a “class of Her Majesty’s subjects” has been affected.
- Definition of Public Nuisance: Whether the conduct was so widespread or indiscriminate that it required prosecution by the community rather than individual civil proceedings.
The Court of Appeal, led by the reasoning of Tucker J, rejected the defendant’s appeal based on the following:
- Aggregation of Acts: The court found it “permissible and necessary” to look at the cumulative effect of the calls made to numerous women on numerous occasions.
- Class of Subjects: Applying the test from Attorney-General v PYA Quarries Ltd, the court held the conduct materially affected the reasonable comfort and convenience of a “class of Her Majesty’s subjects.”
- Community Responsibility: The nuisance was deemed so widespread and indiscriminate that it was not reasonable to expect one person to take proceedings alone; instead, it warranted responsibility by the community at large.
- Public Impact: The Crown successfully proved that a “considerable number of persons or a section of the public” was affected, as distinct from individual persons.
The decision in Johnson was significant for expanding public nuisance to cover a “series” of individual annoyances. However, this approach was later criticized and overruled in Rimmington for several reasons:
- Perversion of the Offence: It was determined that injury caused to separate individuals does not satisfy the requirement of “common injury” to the community.
- Lack of Clarity: The reasoning was found to lack the “clarity and precision” required by law and the Convention, effectively “re-inventing public mischief.”
- Arbitrary Nature: It was deemed arbitrary to decide that a specific call (e.g., the hundredth) retrospectively turned a series of private acts into a public crime.
- Intellectual Moorings: The court eventually concluded that the Johnson approach cut the offence adrift from its “intellectual moorings” by stretching the analogy of environmental/neighbourhood nuisance too far.
Verdict
The Court of Appeal dismissed the appeal and upheld the conviction, ruling that the cumulative effect of the calls constituted a public nuisance. This decision was subsequently overruled and labeled as “mistaken.”
