QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|DIRECTOR OF PUBLIC PROSECUTIONS||Defendant|
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Mr B Lenard (instructed by DPP) appeared on behalf of the Defendant
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"We were of the opinion that the offence under Section 5 of the Public Order Act 1986 had been proved. We believed that this was a public area in the middle of a block of flats: there were people around who do not need to hear frightening and abusive words issuing from a young man. It was not only the words but the tone in which they were said which causes alarm."
As Mr Lenard observed in his submissions for the prosecution, the last sentences are ungrammatical, and the mixture of the present tense and past tense makes it difficult to say whether these were findings of facts or general propositions.
"(i) As part of the reason for the decision that Denzel Harvey had committed the offence alleged under Section 5 of the Public Order Act 1986, 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.
"(ii) As part of the reason for their said decision were the justices entitled to conclude that either Police Constable Challis or Police Community Support officer Mcllvaney were likely to have been caused harassment, alarm or distress as a result of the use by the Appellant of the said words referred to in (i) above, in the absence of any specific evidence that either officer felt threatened by the Appellant's conduct or felt harassed, alarmed or distressed.
"(iii) As part of the reason for their said decision were the justices entitled to include that the bystanders who witnessed the incident or who may have been in the open area of the flats or resident in their homes were persons likely to have been caused harassment, alarm or distress, in the absence that any specific evidence that such result was likely." [emphasis added]
"Very frequently words and behaviour with which police officers will be wearily familiar will have little emotional impact on them save that of boredom. It may well be that, in appropriate circumstances, justices will decide (indeed they might decide in the present case) as a question of fact that the words and behaviour were not likely in all the circumstances to cause harassment, alarm or distress to either of the police officers. That is a question of fact for the justices to be decided in all the circumstances, the time, the place, the nature of the words used, who the police officers are, and so on."
"I felt threatened by [his] behaviour ... by his actions, by his manner. He was very agitated. He was verbal... It was his whole course of conduct, his whole manner. He was very verbal. He was very agitated. He had become very aggressive".
The Crown Court, from whom the appeal by case stated was brought, expressed their conclusions in the case thus:
"The court was of the view that PC Richards was -- just -- caused harassment, alarm or distress thereby and dismissed the appeal."
When they were asked to give reasons, the presiding judge said this:
"We then considered whether in the particular circumstances, those words were likely to cause harassment, alarm or distress. In respect to alarm or distress our conclusion is no. Harassment, well considering the fact that PC Richards was having to deal with the search of another particular defendant notwithstanding the fact that the closest you got was some three metres away, we do take the view that that was likely to amount to harassment. It follows therefore that we have taken the view that your behaviour, not by much, crosses the line and that the offence has been made out."
"Frequently though they may be used these days, we have not yet reached the stage where a court is required to conclude that those words are of such little significance that they no longer constitute abuse. Questions of context and circumstance may affect the court's ultimate conclusion as to whether, in an individual case, they are abusive, but on these facts, during an incident in which the appellant was strongly opposing the detention of his brother, they were delivered in a situation which sustainably led the court to conclude that they were abusive. I stress that the decision on an issue of this kind will always be fact dependent."
In R(R) v DPP  EWHC Admin it was held that "distress" required real emotional disturbance or upset, and that while the degree of such disturbance or upset need not be grave, it should not be trivialised.
"... I do not believe it to be necessary that the prosecution call a person or persons who can say that they did see what was happening. The evidence must be sufficient, so that the court can draw the inference, having regard to the criminal standard, that what he was doing was visible to or audible to people who were in the vicinity at the relevant time."