Article by Richard Wingfield, pupil at 6 Kings Bench Walk
The broad scope and low threshold of the offence under section 5 of the Public Order Act 1986 makes it frequently prosecuted and familiar to practitioners. The recent case of Harvey v Director of Public Prosecutions  All ER (D) 143 (Nov) required the High Court to re-examine the not uncommon situation where a person has been charged with a section 5 offence after swearing at a police officer. The fairly short and ex-tempore judgment provides some fresh guidance on determining whether words will be considered "abusive" under section 5, and when evidence of their impact upon individuals will be required.
Section 5 of the Public Order Act 1986
A section 5 offence comprises two elements:
- A person must (a) use threatening, abusive or insulting words
or behaviour, or disorderly behaviour, or (b) display any writing,
sign or other visible representation which is threatening, abusive
or insulting; and
- The words or behaviour, or writing, sign of other visible
representation must be within the hearing or sight of a person
likely to be caused harassment, alarm or distress thereby.
Unique amongst the public order offences in the Act, section 5 requires no proof of any intention, nor that any person actually be caused harassment, alarm or distress, only that the act took place within the hearing or sight of a person "likely" to be caused harassment, alarm or distress.
The appellant, Denzel Harvey, was stopped by police outside of a block of flats on suspicion of possessing cannabis. One attempted to search him and he objected saying, "Fuck this man, I ain't been smoking nothing". He was told that if he continued to swear he would be arrested for a section 5 offence. He was searched and, when nothing was found, said, "Told you, you won't find fuck all". He was warned again about swearing. Finally, when he was asked if he had a middle name, replied, "No, I've already fucking told you so". He was arrested and charged with a section 5 offence.
At trial, no evidence was given that any of the officers had been harassed, alarmed or distressed by the appellant's words; nor was any evidence given that anyone else had been. Nevertheless, the appellant was convicted on the basis that the defendant used the words in a public area in the middle of a block of flats and that there were people nearby.
The court held that the first element that must be proved is that the words spoken were "threatening, abusive or insulting". In relation to the word "fuck", the High Court had held in Southard v DPP  EWHC 3449 (Admin) that (emphasis added):
"...[W]hether or not the person addressed is a police officer or a member of the public, the words "fuck you" or "fuck off" are potentially abusive. 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."
This was cited with approval in Harvey suggesting that, five years on, the word "fuck" has still not yet lost its potency. It found that the words did amount to amount to abusive or insulting words or behaviour. Having decided that the words spoken were potentially abusive, the court went on to state that there must also be proof that the words were spoken within the hearing of a person likely to be caused harassment, alarm or distress by them. There was no evidence of that here and the conviction was therefore quashed.
Lessons to be learned
There are two lessons from the case. First, the context in which the words are used may be important. In many cases, the only victims of the offensive behaviour are police officers. In such circumstances, whether the words are or are not abusive may depend upon the manner of their use, the context in which such words are used, and perhaps even the cultural background of the person using them. Second, evidence will always be required that the hearers would be likely to be caused harassment, alarm or distress: this cannot be inferred. An obiter comment by Mr Justice Bean towards the end of the judgment, however, appears to leave the door open to an argument being made that some words are so offensive that it may be that no evidence as to their impact will be necessary.
Lesson one: sticks and stones
Whether words are or are not threatening, abusive or insulting may depend partly upon the circumstances in which they are used and how they are used. Whether words are threatening, abusive or insulting is a question of fact. Words are to be given their ordinary meaning: Brutus v Cozens  AC 854, HL. As seen above in Southard, this is not purely an objective test. Questions of context and circumstance may affect a court's conclusion as to whether particular words or behaviour are abusive. What may be insulting during a church service may be less so when shouted during the course of a football match.
The higher courts have given some guidance on the limitations to be placed upon these words. They are not synonymous with causing annoyance, anger, disgust or distress: Parkin v Norman  QB 92, and it may not be enough that a person's words or behaviour are vigorous, distasteful or unmannerly: Brutus at 862 and 865, or offensive or rude: R v Ambrose (1973) 57 Cr.App.R 538. Ultimately, as Lord Reid said in Brutus, "There can be no definition. But an ordinary sensible man knows an insult when he [or she] sees or hears it" and "Insulting means insulting and nothing else".
Interestingly, the word "fuck", and the manner in which it was used, no longer appears to be considered offensive in Australia. In Police v Butler  NSWLC 2, the Local Court of New South Wales held, "The word fuck is extremely common place now and has lost much of its punch... in this usage the word has lost all meaning. It may be full of sound and fury, but it signifies nothing."
Lesson two: There are swear words, and there are swear words
Mr Justice Bean sets out in his judgement a straightforward proposition that evidence will always be required that an individual was likely to have been caused harassment, alarm or distress and that this cannot be inferred:
"Where witnesses have given oral evidence of an incident which forms the basis of a charge under section 5 of the Public Order Act 1986, but have said nothing and been asked nothing about experiencing harassment, alarm or distress, there is no sound basis for the court to reach that conclusion for itself."
Despite the proposition's apparent universal application, Mr Justice Bean later appears to suggest that an exception for "far more offensive terms" and he refers to the case of Taylor v DPP  EWHC 1202 (Admin). In Taylor, racial terms of abuse such as "fucking nigger" and "fucking coon bitch" were held by the District Judge at first instance to be so distressing that "[a]nybody hearing that sort of language ... would be likely to be caused distress". On appeal, this finding was accepted by Lord Justice Keene in his judgment. His comments, however, were obiter and so not binding.
In Harvey, Mr Justice Bean, after dealing with witnesses who give oral evidence, goes on to deal with the question or whether harassment, alarm or distress can be inferred in the case of persons present who did not give live evidence. He states:
"The only possible candidates for being the victims of harassment, alarm or distress [other than the witnesses who gave live evidence] were the group of youngsters who gathered round during the exchanges, according to the case statement, or other neighbours... [I]t is wrong to infer in the absence of evidence from any of them that a group of young people who were in the vicinity would obviously have experienced alarm or distress at hearing these rather commonplace swear words used (in contrast to the far more offensive terms used in the case of Taylor v DPP)."
Mr Justice Bean thus makes a distinction, albeit obiter, between words which are likely to cause harassment, alarm or distress in and of themselves and for which no further evidence is required save that the words were said and within the hearing of people (the "far more offensive terms" used in Taylor); and those words for which evidence must be adduced that persons who heard them were likely to be caused harassment, alarm or distress (the "rather commonplace swear words" used in Southard, Harvey). No further guidance is given on determining into which category particular words fall. It will be a question of fact. The English language employs an impressive range of words and phrases which can offend and there are many which could be considered to fall somewhere between "fuck" and "fucking coon bitch". If this obiter distinction is followed, it will be for future courts in each case to determine where on the spectrum – and thus, into which category – particular words lie.
With regards to the first category of words, ("fuck" and "fucking"), Mr Justice Bean highlighted the fact that police officers hear such words regularly as part of their job and, as such, the use of such words could not automatically be held to mean the officers were likely to have been caused harassment, alarm or distress. He repeated that which was stated in DPP v Orum  3 All ER 449 about swear words being "wearisomely familiar". That is not to say that police officers can never be harassed, alarmed or distressed, as some commentators have incorrectly suggested, merely that it is less likely for them then a layperson who is not used to hearing such words.
What still remains open is whether a distinction should be drawn between newly qualified or part-time police constables as opposed to experienced officers. Or, whether words which may cause harassment, alarm or distress to Police Community Support Officers or council officers investigating licensing offences, noise nuisance or fly-tipping may not, for example, to seasoned parking wardens.
Advice for practitioners on section 5 offences
1. Context is key. It may not be sufficient for evidence to be adduced that the words were said, but that in those circumstances, the words were abusive, threatening or insulting.
2. Both elements of the offence must be proved. It must always be shown that the words used were likely to cause a person within hearing to be caused harassment, alarm or distress.
3. Although it cannot be said that police officers will never be harassed, alarmed or distressed by the words they hear, the nature of their work means that they are less likely to be so caused.
4. Subject to 5 (below), evidence must always be adduced that the person who was within hearing of the words was likely to have been harassed, alarmed or distressed. It cannot be inferred.
5. It is suggested obiter in Harvey that there are certain words which are "far more offensive" than those used in Harvey (e.g. racial abuse) where evidence is not required and that it can be inferred that they would have caused harassment, alarm or distress. Until the point is clarified in future case law, it would be prudent to treat Rule 4 as applying to all words.
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