On 13 September 2024, the Court of Appeal handed down judgment in R v Smith & Ors [2024] EWCA Crim 1040.
The new statutory offence of causing a public nuisance, contrary to section 78 of the Police, Crime, Sentencing and Courts Act 2022 came into force on 28 June 2022. It abolished the old common law offence of public nuisance. A person commits the offence if they do an act that “creates a risk of, or causes, serious harm to the public or a section of the public”.
The appellants in this case were protestors with the movement Just Stop Oil. On 3 July 2022, they staged a protest by invading the track at the British Grand Prix Formula 1 motor race held at Silverstone.
Following their arrests, they were the first defendants to face trial under the new statutory offence. The Prosecution argued that by their protest, the defendants had created a risk of death or personal injury to the F1 drivers, the Silverstone marshals and themselves. On 10 February 2023 at Northampton Crown Court before Mr Justice Garnham, they were convicted by a majority.
The appellants subsequently appealed their convictions to the Court of Appeal. In particular, the appellants argued that (i) a submission of no case to answer at trial should have been allowed, as any risk of harm or personal injury was not faced by “a section of the public” as required by the statute; and (ii) the judge had provided the jury with insufficient direction on the meaning of “section of the public”.
The Court (Holroyde LJ, Griffiths J and HHJ Dean KC) found that on the facts of the particular case, “it was open to the jury to find that the defendants’ conduct had created a risk of serious harm to a section of the public” (§56). On that basis, the convictions were upheld.
Providing the first guidance of the interpretation and ambit of the new offence, the Court held that:
- although section 78 need not be interpreted precisely in accordance with the former common law offence, it remains “necessary” for a jury determining the offence “to distinguish a ‘section of the public’ from a series of individuals” (§51);
- circumstances in which defendants themselves can form a “section of the public” so as to be victims of the offence (as contended by the Crown) will be rare (§48). The Court disagreed with the judge’s finding that the protestors themselves were part of the relevant “Silverstone community” at risk (§56); and
- whilst risk of harm is sufficient for the commission of the offence, that risk must be “real, not fanciful” (§46).
Robbie Stern, instructed by Hodge Jones & Allen, acted for the appellants Louis McKechnie and Alisdair Gibson.