Smith & Ors v Rex

Factual and Procedural Background

The appellants and a co-accused participated in a pre-arranged protest at a major motor race event held on private land accessed by ticket purchase. Their intention was to occupy part of the race track during the event to publicize their campaign. On the day of the race, after it began, they trespassed into a prohibited area by climbing fences and barriers, eventually sitting on the track and obstructing part of it. This conduct occurred while race cars were still on the circuit, although the race had been interrupted by a collision and red flags had been displayed, causing cars to slow down.

The appellants were charged with conspiracy to cause a public nuisance and causing a public nuisance under section 78 of the Police, Crime, Sentencing and Courts Act 2022. The conspiracy charge was dropped, and the trial proceeded on the substantive offence. The prosecution alleged that the appellants' conduct created a risk of serious harm, specifically death or personal injury, to a section of the public, and that the appellants were reckless as to this risk.

The trial was held before a judge and jury in the Crown Court. The appellants made submissions of no case to answer, arguing that the evidence was insufficient to prove that a risk of serious harm was created to a section of the public. These submissions were rejected by the trial judge, who provided detailed reasons. The jury ultimately convicted the appellants. Sentencing followed with various community orders and suspended sentences.

The appellants were granted leave to appeal against their convictions on grounds relating to the refusal of the no case to answer submissions and the adequacy of jury directions regarding the concept of "a section of the public". One appellant sought leave to appeal on an additional ground concerning secondary liability but later abandoned most such grounds.

Legal Issues Presented

1. Whether the trial judge erred in refusing the appellants' submissions of no case to answer on the basis that the evidence was insufficient to prove that their conduct created a risk of serious harm to a "section of the public" as required by section 78 of the Police, Crime, Sentencing and Courts Act 2022.
2. Whether the trial judge failed to provide adequate directions to the jury on the meaning of "a section of the public" in the context of the statutory offence.
3. Whether there was sufficient evidence to establish secondary liability for one appellant.

Arguments of the Parties

Appellants' Arguments

• The statutory offence should be interpreted in line with common law principles, requiring proof that the risk of serious harm was to a significant or substantial section of the public, not merely to a limited number of individuals.
• The evidence at trial did not demonstrate a risk to a section of the public but only to individual drivers, marshals, and the appellants themselves, who cannot constitute a "section of the public".
• The appellants contended that the prosecution failed to prove the necessary element of risk to a section of the public, rendering the convictions unsafe.
• One appellant argued that no reasonable jury could find him guilty as a secondary party because he did not know his co-accused would sit on the track while cars were still passing.
• The appellants argued that the trial judge failed to adequately direct the jury on how to determine whether the persons at risk constituted "a section of the public".

Respondent's Arguments

• The prosecution relied on the plain statutory language, which does not include the qualifying adjectives used in common law cases, and thus requires only proof of risk to "the public or a section of the public" without further qualification.
• The risk of serious harm was established as to the drivers, marshals, and others who might assist marshals, constituting a section of the public.
• The appellants themselves could, in some circumstances, be included within the relevant section of the public, although this was not determinative in this case.
• The trial judge's directions to the jury were legally sound and sufficient to enable a proper determination of the issues.
• The evidence was sufficient to establish secondary liability for the appellant who sought leave to appeal on that ground.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasizing the primacy of the statutory language in section 78 of the Police, Crime, Sentencing and Courts Act 2022, noting that the common law offence of public nuisance had been abolished and replaced by this statutory offence. The court highlighted that Parliament chose not to include qualifying adjectives such as "significant" or "substantial" when referring to "a section of the public," indicating an intention for a broader interpretation.

The court rejected the appellants' argument that the offence could not be committed on private land accessible only by ticket holders, affirming that such persons remain members of the public for the purposes of the offence. The court also rejected attempts to "atomise" the public into unrelated individuals, affirming that a group including drivers, marshals, and others involved in the event could constitute a section of the public.

In assessing the sufficiency of evidence, the court emphasized focus on the risk of harm created, not actual harm, and that the risk must be real and evaluated at the time the defendants trespassed onto the prohibited area. The court agreed with the trial judge that the risk extended beyond just the last two cars and a few marshals, encompassing a broader group of persons involved in the event.

The court outlined a four-step approach for judges in future cases: (1) evaluate the risk of harm at the relevant time, including foreseeable reactions of others; (2) identify the persons at risk; (3) consider whether co-accused can be part of the relevant section of the public (rare and fact-dependent); and (4) determine as a question of fact whether the persons at risk constitute a section of the public, with no fixed minimum number but requiring more than isolated individuals.

The court found no error in the trial judge's refusal of the no case to answer submissions, nor in his directions to the jury, despite some room for improvement in explicitly excluding defendants themselves from the relevant section of the public. The court agreed with the trial judge's reasoning on secondary liability for the appellant who sought leave to appeal on that ground, rejecting that ground as without merit.

Holding and Implications

The court DISMISSED the appeals of all appellants and refused the renewed application for leave to appeal on the additional ground by one appellant.

The decision confirms that the statutory offence of causing a public nuisance under section 78 of the Police, Crime, Sentencing and Courts Act 2022 should be interpreted according to its plain language without importing common law qualifiers. It establishes that a "section of the public" requires a group larger than isolated individuals but does not require a minimum number or specific descriptors such as "significant" or "substantial". The ruling clarifies evidential and legal standards for no case to answer submissions and jury directions in offences under this section.

No new precedent altering the interpretation of public nuisance law beyond the statutory framework was established; rather, the court reinforced the primacy of the statutory text and provided guidance on its application in the context of protest-related conduct on private land accessible to the public by ticket.