England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		30 January 2004

1. LORD JUSTICE MAY: Nelson J will give the Courts' decision.
2. MR JUSTICE NELSON: This is an appeal by way of case stated by the Crown against the decision of the Pwllheli Magistrates' Court on 9th July 2003 when they acquitted the respondent on a submission of using threatening words and behaviour which had been racially aggravated, that offence being under section 31(1)(c) of the Crime and Disorder Act 1998 and section 28 of that Act, the basic offence being under section 5 of the Public Order Act 1986.
3. The facts are stated in the case stated as follows:

"i. At 11.30pm on the 9th May 2003, Police Constable Williams was on patrol on the High Street in Pwllheli when he had cause to warn the respondent regarding his behaviour. The respondent was singing a song about Scousers and was affected by alcohol.

ii. After the warning, the respondent stopped singing and the Constable walked away.

iii. The respondent then started singing the same song across the road from the Turkish Takeaway within sight of the Turkish staff but had replaced the word Scousers with Turks. The song's contents was as follows:

Build a bombfire, built a bombfire, put the Turks on the top, put the Egypts in the middle and burn the fucking lot.

iv. The song was inappropriate and would have caused alarm to members of the public in the area at the time and inside the fast food establishment.

v. The respondent was arrested and later charged with racially aggravated disorderly behaviour.

4. On behalf of the respondent, it was contended on a submission of no case, that the arrest was unlawful within section 5(4) Public Order Act 1986 and section 31(3) of the Crime and Disorder Act 1998 as the Constable had failed to warn the respondent about his racially aggravated conduct pursuant to section 31(3)(b) of the 1998 Act. It followed that the Constable had acted unlawfully in purporting to arrest the respondent.

5. On behalf of the appellant, it was contended that the respondent had been duly arrested and that the requirement to warn the respondent after the racially aggravated conduct created an unnecessary obligation on the Constable."

4. At the close of the appellant's case the justices ruled that the appellant had no case to answer.
5. The basic offence is set out, as I have indicated, under section 5 of the Public Order Act 1986. Section 5(1) states:

"A person is guilty of an offence if he-

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour

...

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."

6. Under subsection (4) of section 5 of the Public Order Act 1986,

"A constable may arrest a person without warrant if-

(a) he engages in offensive conduct which the constable warns him to stop, and

(b) he engages in further offensive conduct immediately or shortly after the warning.

7. Offensive conduct under section 5(4) is defined as meaning conduct,

" ... the constable reasonably suspects to constitute an offence under this section, and the conduct mentioned in paragraph (a) and the further conduct need not be of the same nature." (section 5(5)

8. Under section 31(1)(c) the racially aggravated offence, a person is guilty of an offence under this section of the Crime and Disorder Act 1998 if he commits an offence under section 5 of the Public Order Act 1986, harassment, alarm or distress, which is racially or religiously aggravated for the purposes of this section. Under subsection (3) of section 31 of the Crime and Disorder Act 1998,

"A constable may arrest a person without warrant if-

(a) he engages in conduct which a constable reasonably suspects to constitute an offence falling within subsection (1)(c);

(b) he is warned by that constable to stop; and

(c) he engages in further such conduct immediately or shortly after the warning.

The conduct mentioned in paragraph (a) above and the further conduct need not be of the same nature."

9. The justices, when dealing with the matter and accepting the submission, found that the reference to Turks outside the takeaway was indeed of a racialist nature. However, when the constable arrested the respondent no words were uttered to him. "We considered that a warning was a necessary element of the arrest..." the justices state in the case stated and,

"that it was particularly desirable in circumstances in which as a result of drink the respondent's understanding may have been dulled. The warning after the respondent's initial conduct--"

That is referring to the warning about his behaviour rather than any racially aggravated behaviour, "-- did not serve as a warning for the purposes of section 31(3)(b)..." of the Crime and Disorder Act 1988.

10. We have been told during the course of submissions today that it was conceded by the Crown at the magistrates' court that if the arrest was unlawful then it would follow that the proceedings were invalid and it would be right for the matter to be dismissed on the submission of no case to answer being made.
11. Two points arise in this appeal by the Crown. Firstly, whether the warning given in relation to the first incident was sufficient, even though that did not give a warning about any racial element because, of course, no such words had been uttered at the time of the first incident, the recitation of the insulting verse which the respondent used relating to "scousers". The second issue is whether a warning is a necessary ingredient for the offence itself or whether such a warning under the Act is only necessary for the purposes of the arrest.
12. In relation to the first point it is the nature of the Crown's submission, set out in writing, that the warning was sufficient and in reliance upon the decision in Groom V DPP [1991] Crim.L.R. it is said that warnings must be looked at in a common sense way without imposing upon the police an unnecessary burden. Looking at it in that manner, no further warning was required because, in general and appropriate terms, the respondent had already been warned about his behaviour. He knew perfectly well that he was being required to desist from his behaviour which was insulting and loud and that, in the circumstances, was sufficient.

However, section 31(3) states:

"A constable may arrest a person without warrant if- (a) he engages in conduct which a constable reasonably suspects to constitute an offence falling within subsection (1)(c)..."

That is an offence under section 5 of that Act which is racially aggravated for the purposes of the section. By that reference to section 31(1)(c) it is clear that the warning in relation to the power of arrest has to include a warning which relates to the racially-aggravated element and not just to the behaviour in general. The reason for that, it is submitted on behalf of the respondent, is that the offender is thereby given an opportunity to correct his conduct. The fact is that the requirement is clear. Before an arrest can be carried out under section 31(3) of the Crime and Disorder Act 1988 a warning has to have been given which, in terms, spells out the nature of the racially-aggravated disorderly conduct of which the offender has been, on the face of it, guilty. I, therefore, reject the Crown's submission in relation to the warning in so far as section 31(3) is concerned.

13. As to the second point which arises, namely whether a warning is a necessary ingredient in the commission of the offence, the section does not, in fact, state that this is so. The section itself requires or states that a person is guilty of an offence if he commits an offence under section 5 which is racially or religiously aggravated for the purpose of this section. That is entirely distinct from the power of arrest under section 31(3), where, as I have indicated, a specific warning in relation to racial insult has to be given. This can be demonstrated by the fact that there may be circumstances in which it is neither possible nor appropriate for an offender who has committed such an offence under section 31(1) to be arrested. The information, that the offence has been committed, may not come from a constable. The offender may have left the scene, the information having come from another source. In such circumstances, if he were to be prosecuted in the magistrates' court, an information could be laid against him, a summons issued and served and he could be brought before the court.
14. Here, however, it is submitted to us that whilst that is in principle correct, where somebody is arrested unlawfully, charged improperly after that unlawful arrest, bailed in accordance with the charge that has already been made against him and taken to the magistrates upon the basis of that charge, that is an unlawful basis and his appearance before the court is unlawful. Hence it cannot be said that he can be successfully prosecuted; indeed, the whole proceedings are invalid.
15. That is not a matter which is accepted by the Crown today, indeed it is submitted by the Crown that section 31(1) of the 1998 Act defines the offence. That is entirely separate from the power of arrest and that for the offence to be committed no warning is necessary. Furthermore, once the person is brought before the court, if that offence has been committed he can properly be dealt with before that court provided the ingredients of the offence have been made out.
16. It became clear during the course of submissions today that whilst the arrest under the Crime and Disorder Act 1998 may not have been lawful, there certainly could have been a lawful arrest under section 5 of the Public Order Act 1986, for the basic offence, because a warning had been given in respect of the respondent's initial behaviour and so he could quite properly have been arrested in relation to that matter.
17. I, for my part, am satisfied that the Crown's submissions are correct. It seems to me that the warning is required for arrest, but is not an essential ingredient of the offence itself. The justices may, if the offender is brought before the court, even though the charge itself may not have followed a correct arrest, hear that matter and convict were they to find that the offence itself had been committed.
18. In those circumstances, it follows, in my judgment, that the acceptance by the court of the submission at half time that this was an offence which, as no warning had been given, had not been made out, and the submission must succeed, was wrong in law. It was after all conceded before the justices that the words uttered were racially insulting and, indeed, it was clear beyond peradventure, on the face of it, that the conduct appeared to be disorderly within the meaning of the basic offence under section 5 of the 1986 Act. In those circumstances, in my judgment, the appeal should be allowed and the case remitted to the justices for rehearing.
19. LORD JUSTICE MAY: I agree. There is a symmetry between sections 5(1) and 5(4) of the Public Order Act 1986 on the one hand and section 31(1) and 31(3) of the Crime and Disorder Act 1988 on the other. As to that later section, I agree with my Lord that the warning referred to in section 31(3)(b) of the 1998 Act has to relate to an offence falling within subsection (1)(c), that is to say an offence under section 5 of the Public Order Act which is racially or religiously aggravated for the purpose of that section. Accordingly, to put it shortly, a warning of abusive conduct which is not aggravated would not be a warning for the purpose of section 31(3). It would, no doubt, have been a warning for the purpose of section 5(4) of the 1986 Act, so that the respondent's arrest in the present case might lawfully have been effected under that. The proposition that he was not lawfully arrested under section 31(3) of the 1998 Act is, accordingly, a mere technicality. The symmetry, in my judgment, indicates that in both these sections the offence, in particular in this case under section 31(1) of the 1988 Act, is not dependent on a lawful arrest under section 31(3). The warning necessary for the arrest is obviously to give the offender an opportunity to desist before he is arrested, but that does not mean that he has not first time around committed the offence.
20. I also agree that a technical unlawfulness in the arrest in the present case did not and should not have disabled the magistrates from proceeding to hear the charge of the offence that was alleged against him under section 31(1).
21. The appeal before this court has proceed entirely on that question and it is right to point out that Mr Michael Strain, who appears for the respondent, has conceded in his written submissions that the second incident involved racial abuse. It is right just to record that paragraph 8 of the case stated appears to contain an opinion by the magistrates that there was no evidence that the constable or any members of the public was caused harassment, alarm or distress by the respondent's behaviour and no evidence was led as to the likelihood of the constables being caused harassment, alarm or distress by his conduct when he was initially approached, which they regarded as an essential ingredient of the basic offence.
22. In so far as that might have been regarded as sufficient to dismiss the case at the close of the prosecution case, in my judgment it would not have stood examination in this court on the facts that the magistrates found. An offence under section 5 of the Public Order Act 1986 is committed if a person,

"uses threatening, abusive or insulting words or behaviour, or disorderly behaviour...

Within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby".

It being accepted that the second incident involved racial abuse and the magistrates finding that the respondent started singing this offensive song across the road from the Turkish takeaway, within sight of the Turkish staff, it seems to me that those facts alone at least raise a prima facie case that the Turkish staff of the takeaway were likely to be caused harassment, alarm or distress by the offensive song that the respondent was singing.

23. For those additional reasons, in my judgment, this appeal should be allowed and I agree that the case should be remitted to the justices for a rehearing. Mr Williams, and Mr Strain, we are very grateful.
24. MR WYN WILLIAMS: Can I raise the matter of costs? Although I concede that this may be regarded as a draw match, as it were, I am instructed to ask for costs in the sum of £500. I cannot take it any further than that.
25. MR STRAIN: The respondent is legally aided. I am grateful for my friend regarding it as a draw match.
26. LORD JUSTICE MAY: In the circumstances we do not make an order for costs. Thank you. As I say, we are grateful to both of you.