England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES

		Courtroom No. 2 Cardiff Civil and Family Justice Centre 2 Park Street Cardiff CF10 1ET
		3rd October 2018

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MRS JUSTICE ANDREWS:

1. This is an appeal by way of case stated by the Crown Court at Merthyr Tydfil. There is a single issue, but it breaks down into two distinct parts. The issue as stated by the Crown Court for the consideration of the High Court is whether as a matter of law the Crown Court was entitled on its findings of fact to dismiss the appeal of Mr Williams, the appellant in this case, thereby confirming his conviction by the magistrates for an offence contrary to Section 5 of the Public Order Act 1986.
2. Mr Williams raised two objections to the decision of the Crown Court to dismiss his appeal. The first was that there was a deficiency in the charge against him because it was formulated in a way which infringed Rule 7.3 of the Criminal Procedure Rules. He contended before the Crown Court, and contends in this appeal, that the wording of the charge was insufficiently clear, unambiguous, and precise. He says that it did not use plain English so that he would be able to understand the nature of what it was that he was being accused of.
3. Secondly, if that submission did not find favour, Mr Williams submitted that the Crown Court was not entitled to find that the charge against him under the Public Order Act had been proved. Again, there were two elements to that contention. First, Mr Williams contended that the Crown Court was not entitled to find that the words which he admits using to the Police Constable at the time were such as to be likely to cause harassment, alarm or distress to a person in the vicinity, and further or alternatively he submitted that the Court was wrong to reject his defence under the Public Order Act, that he did not intend to be abusive or threatening and that the words that he used were unlikely to cause such harassment, alarm or distress.
4. The background can be very briefly stated. On the afternoon of 27 July 2016 two police officers; PC Banner and PC Jones, were patrolling in Tonypandy in a marked police vehicle when they received a report of an alleged assault. The complainant stated that Mr Williams, the appellant, had struck his arm. They went to the scene of the alleged assault, which was a block of flats called St Andrew's Court. There is a car park outside the block of flats and on arrival at the scene the officers discovered that there was a car parked in the centre of the parking lot, blocking the route to the exit of the four car spaces of the residents. The vehicle was empty, the keys were in the ignition, the engine was running, and its radio was playing. There is no dispute that PC Banner removed the keys from the ignition of the vehicle. Having done so, the officers made their way to one of the flats to speak to the complainant. Sometime after that the owner of the vehicle, who was the son of one of the flat owners, came and knocked on the door of the flat. He apologised for leaving his vehicle where it was, and PC Banner gave him back the car keys.
5. According to Mr Williams this incident had taken almost an hour, during which time he, and other residents, were unable to get access from their cars to the exit to the car park. He says that there was a lady who had a hospital appointment who missed it because the vehicle from which the keys had been removed was blocking her car and there was no way of removing that impediment.
6. As the officers went back into the car park the appellant was present. It appears that he and PC Banner knew each other. The appellant shouted to PC Banner, 'You're a prick'. The constable then walked over towards him and warned him about his language, but the appellant (who accepts that he was angry) continued to use abusive language towards him and, on his own admission, at least once more called the officer, 'a fucking prick'.
7. The Crown Court found as a fact that the appellant raised his hand towards PC Banner at or around the time that those words were spoken, rejecting the appellant's evidence that he did not do so. There was evidential material on the basis of which the Crown Court was entitled to make that finding of fact. It did not rely only on the evidence of PC Banner but on the evidence of the other officer present, PC Jones, who in response to questions by the appellant said at one point that the appellant's hands did come up above his waist to his chest area a few times, and that is why he remembered PC Banner handcuffing him. He added, 'If he had not cuffed you, I would have'.
8. Therefore, there was evidence on the basis of which the Crown Court was entitled to reject the evidence of the appellant that he did not move his hands in a threatening way towards PC Banner, that he simply raised his hand. On the basis of that finding, and the circumstances of the case, the magistrates, and the Crown Court, were both satisfied to the criminal standard that the Public Order Act offence had been made out.
9. I will deal first of all with the objection to the form of the charge. As it was originally set out in typescript on the face of the charge sheet, the charge referred to an incident on the 27/7/2016, at the side of St Andrews Court, Tonypandy. It did not identify the person towards whom the threatening or abusive words or disorderly behaviour were directed. However, at a case management hearing before the magistrates, at which point in time Mr Williams the appellant was represented by a solicitor, the Crown amended the charge and the words were inserted, 'at the car park' in substitution for the words, 'at the side of St Andrews Court' and the charge now stated that 'the threatening or abusive words or behaviour were used towards PC Banner 2500'.
10. Mr Williams told the court today that those words were inserted on the face of the charge sheet that is in evidence before the court by his then solicitor, but it was done in circumstances in which the solicitor had spoken to the person then representing the Crown Prosecution Service. It is quite clear that those words were inserted by way of amendment in order to make the charge more precise. Notwithstanding those amendments, Mr Williams contends that the charge sheet was still insufficiently precise to comply with the requirements of the Criminal Procedure Rules.
11. The Criminal Procedure Rules require that:

'An allegation of an offence in an information must contain a statement of the offence that describes the offence in ordinary language, identifies any legislation that creates it and gives such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant'.

12. The Magistrates' Court and the Crown Court reached the conclusion that the requirements of the Rules were met. The question for this Court is whether that was a decision that they were lawfully entitled to reach; I have no doubt that it was. The charge, as amended, indicates the time of the offending behaviour, the place where it took place, and the person towards whom the offending behaviour was directed. It is not an infringement of the Rules that the charge covered all the various permutations of offending that are set out within section 5 of the statute. It is not incumbent on the CPS to prefer separate charges for threatening behaviour, threatening words, abusive words, and disorderly behaviour, arising from the same incident. That would overload a charge sheet. It is enough that there is sufficient information on the face of the charge to bring home to the accused person what he is being accused of having done and, in my judgment, there could be no doubt whatsoever as to what Mr Williams was being accused of here. This was not a case of trial by ambush. The charge was sufficiently particularised for him to know what it was that he was said to have done which amounted to criminal activity. Therefore, the first ground of challenge fails.
13. The more substantive complaint is that the fact findings of the Crown Court did not suffice to enable them to find that the charge against Mr Williams had been proved to the criminal standard. The Public Order Act, Section 5, requires various ingredients to be made out. In order to be guilty of an offence under that section, the defendant must use threatening or abusive words or behaviour or engage in disorderly behaviour. Secondly, those threatening or abusive words need to be uttered, or the offending behaviour needs to be displayed, within the hearing or sight of a person likely to be caused harassment, alarm, or distress thereby. I stress the word "likely to be caused harassment, alarm, or distress" because it is unnecessary to prove that somebody actually was caused harassment, alarm, or distress. Of course, if the Crown is able to prove that somebody was caused such harassment, alarm, or distress it will make their case that much easier.
14. The third element is that (by virtue of Section 6 of the Public Order Act) the Crown must also show that the defendant intended that his words or behaviour were threatening or abusive or was aware that they may be threatening or abusive.
15. In response to the charge the appellant initially stated as follows, 'I told PC Banner in no uncertain terms what I thought of him. I called him all the abusive names under the sun'. However, on this appeal Mr Williams qualified that response by saying that he agreed that the words that he used were "scornfully abusive", which he says was a definition of the word insulting, which was originally in the Public Order Act, but which was removed by amendment.
16. For some reason Mr Williams does not seem to appreciate that abusive language is abusive, whether it is scornfully abusive or not. The question as to whether words or behaviour were threatening or abusive is, as Mr Heptonstall on behalf of the respondent pointed out, a paradigm question of fact for a tribunal to determine.
17. The question for this court is whether the finding by the Crown Court that the words that were used by Mr Williams at the time to the officer were threatening or abusive, was an unreasonable finding in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision. In my judgement it was open for the Crown Court, taking into account their findings about the movement of Mr Williams' hands, to find that those words were threatening. However, even if they had not made that finding, there could be little doubt that the words that he used were abusive. That is not really open to argument. They were not only abusive but they were plainly intended to be abusive of the officer. Whatever the anger that Mr Williams felt and whatever he felt to be the moral justification for hurling abuse at a police officer, that does not affect the quality of the language that he was using, in conjunction with the movement of his arms towards the officer.
18. Mr Williams said that in his view the officer's behaviour was wholly unreasonable, he was on a private car park and that he had caused a great deal of inconvenience to the residents by removing the car keys in a high-handed manner, and that he was not acting in the execution of his duty. However, PC Banner plainly was acting in the execution of his duty. He was present there to investigate an alleged assault. He had seen the car with its engine running and the keys in the ignition: as he observed, it was plainly a potential target for thieves. He turned off the ignition and took the car keys into custody, and whether or not he over-reacted, as Mr Williams contends, the owner of the car came and retrieved the keys from him fairly promptly once he discovered they were missing, and he did not appear to have been particularly bothered by the officer's action.
19. When one looks at the case law on the question whether foul language of the nature that was used on this occasion by the appellant is capable of being abusive when addressed to a police officer, the court has said it always turns on the context and the circumstances. For example, in the Divisional Court case of Southard v Director of Public Prosecutions [2007] EWHC 3449 (Admin), Fulford J, who gave the judgment of the court, stressed that a decision on an issue of this kind will always be fact-dependent. On the facts as found by the Crown Court in this case, it was plainly open to the judge to consider that the language that was used was abusive when addressed to the police officer to whom it was directed.
20. The more difficult question, however, is not whether the language was abusive, or the behaviour was disorderly, or what the appellant's intention was, but whether the way that Mr Williams was behaving at the time was likely to cause harassment, alarm or distress to a person who was present at the scene of the incident, that is someone within hearing or sight of what he said and did. There was evidence before the Crown Court that there were other people present besides the two police officers, but there is no real evidence as to how those people specifically reacted to Mr Williams' language and behaviour.
21. There is nothing to stop the person likely to have felt harassment, alarm or distress from being a police officer acting in the course of his duty, but of course one has to be cautious about making such a finding, because police officers are expected to show a certain degree of resilience. It may well be, as Glidewell J said in Director of Public Prosecutions v Orum [1989] 1 WLR 88 at 93(c)-(f), that very frequently words and behaviour with which police officers will be wearily familiar will have little emotional impact on them save that of boredom. However, once again, Glidewell J stressed that the question whether or not the words and behaviour were likely, in all the circumstances, to cause harassment, alarm or distress to the police officers was one to be decided in all the circumstances; the time, the place, the nature of the words used, who the police officers were, who else was present, and so on.
22. In this case both the police officers concerned formed the view, rightly or wrongly, that the appellant was intoxicated. He was undoubtedly acting in a manner which gave rise to the perceived need to handcuff him. That perception was not only present in the mind of PC Banner, but in the mind of PC Jones, and I have already quoted his evidence in that regard. PC Jones also formed the view that a Section 5 public order offence had been committed, and whatever might be said by Mr Williams about PC Banner, no question has been raised by him as to the integrity or honesty of PC Jones in giving his evidence.
23. The police officers were going about their duties, they were trying to investigate an alleged assault, they were lawfully on the premises, and as part of the investigation it was going to be necessary for one or other of those officers to interview the appellant. When they tried to speak to him, they were met with abuse. It also appears that other people nearby were trying to calm the appellant down in the course of the altercation. Whatever the appellant's views about the earlier behaviour of PC Banner there was nothing that justified his using such language and moving his hands towards the officer, particularly when he had been told by the officer to calm down and had been warned that he might be arrested if he continued to persist in swearing at him.
24. In those circumstances it seems to me that the Crown Court was certainly entitled to find, on the basis of its findings of fact, that the appeal should be dismissed because the charge had been made out. As to the defence under the statute, the case stated makes it clear that the court rejected the contention that the applicant did not by his words or conduct intend to be threatening and also rejected the contention that his actions were reasonable in the circumstances. Mr Williams takes issues with those findings, but they were findings that the Crown Court was entitled to make and take into account, bearing in mind all the circumstances including the venue, the presence of other people, and the fact that the words that Mr Williams used were not a one-off but were repeated.
25. Indeed, PC Banner's evidence to the Crown Court makes it very clear that he was conscious of the effect that Mr Williams' behaviour might have on the bystanders. PC Banner said:

'Due to the way that you were behaving there was no reasoning with you. The way that you were talking to me with all those others around - you said there is health workers coming back and forth, who I am sure themselves would have been shocked by the language - then I had no option but to arrest you'.

26. In the light of that evidence, which the Crown Court was entitled to accept even though it was strongly challenged by Mr Williams, the Court was entitled to find that it was satisfied so that it was sure that the charge had been proved.
27. Any appellant who seeks to appeal against a decision of the Crown Court in these circumstances faces a difficult task, because it has to be shown essentially that the decision of the Crown Court judge was perverse or irrational, or that the judge made an error of law. In this case there is no error of law and the decision to uphold the conviction cannot be described as a decision to which no reasonable tribunal could have come. Mr Williams feels most strongly that he has been unjustifiably treated in this case and that he was within his rights to swear repeatedly at the police officer. He said that he would do the same again in similar circumstances, I must say that is a very regrettable attitude, but the court cannot do anything about that. Notwithstanding Mr Williams' sense of grievance, there is insufficient material here for the Court to allow this appeal.
28. I therefore answer the question that was posed for the Court in the affirmative. The Crown Court was entitled to dismiss the appeal and I therefore dismiss the appeal by way of case stated.
End of Judgment