Part 3: Public order Section 78: Intentionally or recklessly causing public nuisance
This Section replaces the existing common law offence of public nuisance as it applies to in England and Wales with a statutory offence of intentionally or recklessly causing public nuisance.
	Subsections (1) and (2) set out the elements of the offence. The offence applies where a person does an act, or fails to act in circumstances where they are required to do so by law, and the act or omission causes serious harm to the public or a section of the public, or that the act or omission obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large. Serious harm is defined in subsection (2). The person must have intended their act or omission would have such a consequence, or was reckless as to whether it would have such a consequence.
	Subsection (3) provides for a reasonableness defence, allowing for a person to prove that they had a reasonable excuse for the act or omission. The burden of proof is placed on the defendant as the facts as to whether they have a reasonable excuse will be within their knowledge. The prosecution will still need to have proved all the elements of the offence to the criminal standard of proof, including the serious harm or obstruction that arises as a result of the act or omission, and the defendant intended or was reckless as to serious harm or obstruction. Although not explicit set out, the standard to which the defendant will be required to prove the defence is the balance of probabilities.
	Subsections (4) and (5) set the maximum penalty for the offence, namely six months’ imprisonment (rising to 12 months on the commencement of the increase in magistrates’ courts sentencing powers provided for in the Sentencing Act 2000) and/or an unlimited fine on summary conviction, and 10 years’ imprisonment and/or an unlimited fine on conviction on indictment.
	Subsection (6) abolishes the common law offence of public nuisance.
	Subsection (7) provides that the new statutory offence does not have retrospective effect. Actions or omissions that occurred or began before the coming into force of this subsection cannot form part of this offence.
	Subsection (8) makes provision for civil and other criminal liability.