Appellant charged for using threatening, abusive or insulting words - Public Order Act 1986

Harvey v Director of Public Prosecutions: QBD (Admin) (Mr Justice Bean) (judgment delivered extempore): 17 November 2011

An incident took place in the public area of a complex of flats. Two police officers attended the area and attempted to search a group of people for drugs. The appellant responded to the police officers: ‘Fuck this man, I ain’t been smoking nothing’ and he was warned that if he continued to swear he would be arrested for an offence under section 5 of the Public Order Act 1986 (the act).

Once the search had been completed, the appellant said to the police: ‘Told you you wouldn’t find fuck all’, and he was again warned that he would be arrested if he continued to swear. The police proceeded to conduct a name search on the people they had searched. When they asked the appellant if he had a middle name he replied: ‘No, I’ve fucking told you no.’ The appellant was arrested. During the course of the altercation a small crowd of people had gathered to observe the proceedings.

The appellant was charged with an offence of using threatening, abusive or insulting words, contrary to section 5 of the act. At the hearing, neither officer gave evidence of being harassed, alarmed or distressed, nor was there any evidence produced that anyone else had been harassed, alarmed or distressed. The justices found that the offence was made out and the appellant was convicted. The appellant appealed by way of case stated.

The questions for determination were: (1) As part of the reason for their decision that the appellant had committed the offence alleged under section 5 of the act, were the justices entitled to conclude that the use by the appellant of the words ‘fuck this man, I ain’t been smoking nothing’ and ‘told you you wouldn’t find fuck all’ and ‘no, I’ve fucking told you no’ amounted to threatening, abusive or insulting words and/or behaviour, or disorderly conduct.

(2) As part of the reason for their said decision, were the justices entitled to conclude that either of the police officers were likely to have been caused harassment, alarm or distress as a result of the use by the appellant of the words in (1) above, in the absence of any specific evidence that either officer felt threatened by the appellant’s conduct or felt harassed, alarmed or distressed.

(3) As part of the reason for their said decision, were the justices entitled to conclude that the bystanders who witnessed the incident or who may have been in the open area of flats or resident in their homes were persons likely to be caused harassment, alarm or distress, in the absence of any specific evidence that such a result was likely. The appeal would be allowed.

Where a witness had given evidence which formed the basis of a charge, but had said nothing about being harassed alarmed or distressed, there could be no sound basis for the court to draw the necessary inferences by itself.

In the instant case, the justices had been entitled to conclude that the use of the expletives by the appellant had amounted to threatening, abusive or insulting words and/or behaviour, but the court had not been entitled to conclude that either officer had been or was likely to have been caused harassment, alarm or distress as a result.

Accordingly, question (1) was answered in the negative. Questions (2) and (3) were also answered in the negative. The only possible candidates as victims other than the officers had been the group of youngsters or other neighbours. It might have been possible to infer that the young people were interested in the events, but it was impossible to infer that a group of young people in the vicinity would have experienced alarm at hearing rather commonplace swearwords. It had not been enough to say that the incident had taken place outside a block of flats and that people would have been around. There had been no evidence that anyone else had been within earshot. The appellant’s conviction would be quashed.

Holloway v DPP [2004] All ER (D) 278 (Oct) considered; Taylor v DPP [2006] All ER (D) 271 (Apr) considered; Southard v DPP [2006] All ER (D) 101 (Nov) considered.

Simon Natas (instructed by Irvine Thanvi Natas) for the appellant; Benedict Leonard (instructed by the Crown Prosecution Service) for the respondent.