Sun, 04 Aug 2013

A real public nuisance: political persecution

Book launch of 'The Queen vs Trenton Oldfield: A Prison Diary'

Trenton Oldfield undertook a peaceful direct-action protest at the 2012 Oxford and Cambridge Boat Race. He disrupted the boat race for about 20 minutes by swimming in front of the boats. The aim of his protest was 'to focus attention on the long-standing and entirely unjust inequalities in British society that are being severely exacerbated by government cuts and reductions in civil liberties.'

He was arrested, tried, convicted, sentenced to a six-month jail term and served two months in HMP Wormwood Scrubs. Australian-born, he has spent the last twelve years in the UK, is married to a British citizen and has a few weeks old daughter. The Home Office did not find the punishment of the criminal justice system was enough and in a vindictive move has refused his spousal visa so he is at risk of being expelled back to Australia. His wife, Deepa, explained: 'A few weeks ago we learned that Trenton's visa application (submitted 1 year ago) has been declined on grounds that he is "a threat to national security", "undesirable" and "not conducive to public good". We have submitted an appeal and are awaiting a tribunal date, which should take place within 2 months time. [...] Everything is now at stake for us - our work, our livelihood, our family and life in London.' They are currently waiting for the outcome of this appeal.

Ways you can support Trenton Oldfield and his family include signing a petition to the Home Office to request that the Home Office reconsiders its 'Refusal Notice', contacting your MP and purchasing his prison diary.

A public nuisance

After his swim, Trenton Oldfield was arrested and initially charged with a section 5 (disorderly behaviour likely to cause harassment, alarm or distress) public order offence. Following political pressure, this charge was changed. Conservative MP Michael Ellis asked the Metropolitan Police commissioner in a Home Affairs Committee:

Q52 Michael Ellis: Commissioner, on the Olympic security arrangements, are you particularly concerned after the University Boat Race incident? The fact of the matter is that one idiot seemed to be able to cause significant disruption, and I think one of the captains of the teams pointed out that they had worked for nine months towards a goal that was spoiled by one individual in an act of self-aggrandisement. [...] I particularly also want to ask you about the penalties available, because I notice from media coverage that the individual who disrupted the boat race appears to have been charged with a section 5 offence under the Public Order Act 1986, which is one of the most minor offences in the book, carries no custodial penalty option at all and usually only results in a small fine. Do we need to look at available offences?

Bernard Hogan-Howe: I do know that the CPS are reviewing whether a more serious charge is possible, given the circumstances. So I think they have one charge and they are reviewing whether another one could be more appropriate. That is not straightforward.

The charge was then changed to that of 'Causing a Public Nuisance'. (After considering offences available under the Terrorism Act, I was eventually arrested, though not charged, also, for a public nuisance offence.) The Crown Prosecution Service specifies in its sentencing manual that the Common Law offence of Public Nuisance has for 'Statutory Limitations & Maximum Penalty: Life imprisonment or a fine or both'.

The Law Commission consulted in 2010 on a 'Simplification of the Criminal Law: Public Nuisance and Outraging Public Decency'. Its recommended option was 'Option 3: enact a statute abolishing the common law offences of public nuisance and outraging public decency and creating statutory offences in their place, with an intention or recklessness standard.' The consultation document gives some examples of public nuisance, the views of one of the key critics of this offence and how this offence was classified:

Examples of public nuisance are:

(1) obstructing the highway;

(2) blasting and quarrying near built-up areas;

(3) allowing land to be used as a dump, creating a dangerous or noxious environment;

(4) noisy parties and “raves”;

(5) bomb hoaxes and false calls to the emergency services;

(6) hanging from motorways and bridges, for example in political demonstrations;

(7) keeping pumas in a domestic garden;

(8) gang activity involving drug dealing in an urban area.


The offence has been extensively criticised in an article by J R Spencer [Public Nuisance – a critical examination (1989)]. His first argument is that the offence is so wide and the definition is so fluid that it lacks the certainty required of a criminal offence. His second argument is that almost all examples of public nuisance are now covered by specialised statutory offences. He concludes that the offence should be abolished, either without replacement or in favour of a narrower offence of doing anything which creates a major hazard to the physical safety or health of the public.


Today public nuisance may still conveniently be divided into two categories, though the classification is different from the historical one given above. The first is “environmental” nuisance, such as harmful substances and smells and obstructing the highway. The second is “behavioural” nuisance, covering offensive behaviour in public. This class is narrowed but not abolished by Rimmington: the test is that the offending behaviour affects several people at once and is not a mere series of acts that annoy individuals. There is some overlap between the two categories: for example drug dealing and the holding of noisy parties in public both affect the amenities of an area and are offensive in themselves.

Brenna Bhandar, Lecturer in Law at Queen Mary, University of London, explains in details the 'interesting history' of the crime of public nuisance in The Criminalisation of Political Dissent: Huckstering the Law. Here's her view of the ruling in Trenton Oldfield's case within this context:

[...] Let’s take the crime of public nuisance as an example. It has its origins in a private law action for interference with one’s property, and then drifts into the public sphere as a means of criminalising improper conduct (along with interference with private property). This is not only a matter of Justice Molyneux having misconstrued who constitutes the “public” in considering who suffered the harm in this case. Nor is it solely about a judge upholding the interests of the elite who were engaged in a sporting event, over the rights of Trenton Oldfield to express political dissent of myriad forms of inequality and injustice. The crime of public nuisance has its origins, and remains in essence, a law concerned with protecting private property and notions of propriety. For this reason and others, the crime of public nuisance should be abolished.

[...] Nearly if not all of the type of public nuisance offences that the law was historically intended to apply to have now been covered by statute. The profligate doctrine of health and safety breeds new rules and regulations daily it seems; and criminal law offences have become increasingly codified. What is left, after all of this content has been emptied out is a dangerously elastic form of criminal offence that can literally be applied to any sort of conduct. And with this, we arrive at Oldfield’s sentencing hearing.

A peaceful direct action to expose some of the policies of this government, led to charges being changed from a public order offence to 'a dangerously elastic form of criminal offence that can literally be applied to any sort of conduct', a jail term and now threats of deportation. Such vindictiveness by the Home Office has succeeded in rallying even those most angered by Oldfield's direct action, such as rower Tobias Garnett, to support him:

[...] Despite my disagreement with Oldfield, the Home Office's decision this week to reject his application for a spousal visa leaves me in an uneasy position: thinking his actions were indefensible, and yet now wanting to defend him.

[...] I know what each of the participants of that race committed to when they stepped into those boats, and I share in their anger at Oldfield. But these things are more important than a race. People with whom we disagree are the best test of the fairness of our legal system. When asked to comment on the matter, a Home Office spokesman said, "those who come to the UK must abide by our laws". They ought to be protected by them too.

The petition calling on the Home Secretary to immediately withdraw her threat to deport Trenton Oldfield is still open.

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