“Would Judges like to be told to eff off in court?”… what the police swearing judgment really says

1 December 2011 by

Harvey v Director of Public Prosecutions [2011] EWHC Crim B1 – Read judgment

“What on earth was he thinking?” asks a Telegraph article bearing as its title another rhetorical question, “Would Judges like to be told to eff off in court?”. This is in reference to Mr Justice Bean’s judgment in Harvey v Director of Public Prosecutions in which he overturned Mr Harvey’s conviction under section 5 of the Public Order Act 1986 for swearing at a police officer.

Alarmed at the corrosion of the rule of law and standards of public behaviour that the judgment propagates, the author of the article admonishes Bean J for ignoring the moral and social significance of “such insolent defiance” of the Police.

So, why such disapproval? According to another article in The Telegraph, Mr Justice Bean held that

swearing at police is not a crime because they hear four letter words ‘too frequently’ to be offended.

An earlier article in the same newspaper put the ratio of the case more broadly as “swear words were now so common they ‘no longer cause distress’”. This “gives the green light for everyone to swear and use disorderly behaviour with the police”, Simon Reed, vice-chairman of the Police Federation, is quoted as saying in the same article.

This reporting of the judgment is simply inaccurate. What Mr Justice Bean actually held in Harvey is neither ground-breaking nor does it give people free rein to swear at police officers. The judgment simply applies the statutory test under Section 5 of the 1986 Act to the facts of the case, in line with existing case law.

The facts of the case were as follows. Two police officers stopped a group of young people, including Mr Harvey, and decided to search them. Harvey said to the officer searching him “Fuck this man, I ain’t been smoking nothing”.

The officer warned him that if he continued to swear he would be arrested for an offence under Section 5 of the 1986 Act. When the search produced nothing, Harvey added “told you, you won’t find fuck all”. The officer warned him again. He then asked Harvey if he had a middle name, to which Harvey responded “No, I’ve already fucking told you so.” The officer arrested him for a Section 5 offence. An assault charge was also brought against him in relation to a scuffle that followed.

In the Magistrates Court, Harvey was acquitted of the assault charge, but convicted of the section 5 offence.

In the High Court, Mr Justice Bean had to decide whether the three incidences of swearing amounted to the offence set out in section 5, that is, whether Mr Harvey had used

threatening, abusive or insulting words or behaviour…within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

The critical question in this case was not whether the words were threatening, abusive or insulting. Contrary to, amongst others, the case analysis of the decision on Westlaw, Bean J in fact upheld the Magistrates’ decision that the words in question amounted to abusive or insulting words or behaviour. The appeal turned rather on the second element of the offence, ie, whether people who heard the words were likely to be caused harassment, alarm or distress by them.

2,124 results

Bean J started by noting that the courts were all too familiar with such language – “A search on the legal database Lexis for cases in which either the word “fuck” or the word “fucking” appear produces 2,124 results.”

Reference was then made to the case law establishing the following:

(a)    “[V]ery frequently words and behaviour with which police officers will be wearily familiar will have little emotional impact on them save that of boredom” (per Glidewell LJ,  DPP v Orum [1989] Cr App Rep 261).

(b)    However, words such as “fuck” or “fucking” are potentially abusive – “[f]requently 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.”(per Mr Justice Fulford, Southard v DPP [2006] EWHC 3449).

(c)    Whether the use of the words did or was likely to cause harassment in any given case is a question of fact to be decided in the specific circumstances of the case (Orum and Southard);

(d)    In order to show that the words were used within the hearing of someone who was likely to be alarmed, distressed or harassed thereby, it is not necessary to adduce evidence from bystanders. However, “[t]he 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.” (per Mr Justice Collins, Holloway v DPP [2004] EWHC 2621 (Admin)).

Turning to the case before him, Mr Justice Bean held that there was simply no evidence that the police officers or others in the vicinity had been caused or were likely to have been caused harassment, alarm or distress by the words. In fact, none of the witnesses was asked the question. The learned Judge added:

Where witnesses have given 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. This is particularly so in the case of police officers because, as Glidewell LJ observed in Orum, they hear such words all too frequently as part of their job. This is not to say that such words are incapable of causing police officers to experience alarm, distress or harassment. It depends, as the court said in Orum and Southard, on the facts; but where a witness has been silent on the point it is wrong to draw inferences.” (emphasis added)

As to the neighbours and people in the flats who might have heard the swear words, it was not enough simply to say that the incident took place outside a block of flats and that there were people around who did not need to hear the words. There was no evidence of anybody being within earshot – other than the group of young people being searched.

As far as that group were concerned, it was wrong to infer from the evidence that they were caused alarm or distress by the use of such “rather commonplace” words.

These were the bases upon which Mr Justice Bean quashed the conviction.

Neither new nor judge-made

The judgment is significant in that it underlines the need for sufficient evidence of all the elements of the section 5 offence, including likely harassment, distress or alarm, before a conviction is made. However, this is neither new nor judge-made. It follows from the wording of the statute.

In fact, under Section 5(3), it is a defence that the accused had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress.

This case was about a Section 5 offence. As Mr Justice Bean observed, swearing in public, whether at Police officers or anyone else, is not an offence as such. What social evil or corrosion of the rule of law that state of affairs engenders is an interesting issue to ponder, but was not one which this judgment could or did answer.

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  1. Jamal Ajouaou says:

    British civilization at risk , if things dont get look into , may be thing need to be shaped .((We shape our buildings; thereafter they shape us.))
    Winston Churchill

  2. Jamal Ajouaou says:

    Relations should be built on mutual respect not matter what the circumstances will be , when speaking to a judge or a the police ,we should always be in good manner .because it is civilisation and culture ,other ways we are going to lose our way leading to tasteless life style to our future children to pick up after us when we are gone ,if they ever remember us may they will use them exact words against our image..

  3. ObiterJ says:

    If I may say so, a precise and concise analysis of this case.

    Too many Police Officers and Magistrates appear to see section 5 as a kind of “don’t be cheeky to the officer” offence. As you rightly point out, the offence has its statutory definition and Bean J’s judgment very properly focussed on that. The duty is on the prosecution to prove each and every ingredient of the offence and here they simply called no evidence relating to a crucial element. No evidence: no conviction – Simples !!

    Section 5 came along as a result of the Law Commission’s review of public order law following the 1984 Miner’s strike. They used to bring “Bind Over” proceedings and these used to have the formula “to keep the peace and to be of good behaviour.” The “good behaviour” bit was dropped as a result of it not meeting European Convention standards relating to clarity of law.

  4. Cat says:

    From the other side of the world – as far back as 1986, the NZ District Court held “F**k off” (uttered in not dissimilar circumstances – to the Police, on the street) was NOT “obscene language in a public place”; rather it reflected the Kiwi vernacular “go away”. The words could be obscene (context is everything) but not in the circumstances of this case said the judge. See Police v Spijkerbosch (1986) 2 CRNZ 82 at 83.

  5. Michael says:

    The problems this causes in society are that the layperson assimilates ‘their rights’ from newspapers – ‘cut and paste’ journalists, eager for a few hundred ‘thumbs up’ signs on their ‘blog pages’ were, for example, responsible for a large number of cannabis convictions a decade ago, as young people were given the impression it had been made legal after changes to the possession law. Many people now think they can stab a burglar with impunity, as a result of lamentably poor reporting of David Cameron’s comments after one was killed.
    I do however feel that Police Officers who become ‘alarmed or distressed ‘ by obscene language should be screened out during recruitment –
    does anyone know exactly how many court cases have involved members of the public (those on council estates for example) complaining about being sworn at since this act came into force? I’ll bet its ‘0’.

  6. Stephen says:

    Although perhaps not a legal point, there does seem to be a class bias in holding that swearing should be a criminal offence. The language cited in the case above is probably normal for young ill-educated men and women of today. They may not mean offence by it. From observation I have heard sentences peppered with such words as are cited above, but not one was uttered in anger or with intent to cause alarm, distress etc. I am glad this young man was acquitted. It seems to me that too much arbitrary power would have been given to the police had the conviction been upheld. It would have given the police the green light to arrest anyone from the lower classes whose normal conversation contains swear words. in any case, I would gave thought it was an occupational hazard for the police to be sworn at given their role. The police force should “man up”.

    1. FatherDougal says:

      I see your point although I do take issue with one aspect of your comment.

      Of course, to swear in front of or at police officers is wrong, simply on the basis of bad manners and it is not something I would do. It is wrong, however, to say that the type of language used is normal or in someway fitting to ‘young ill-educated’ men and women. Like I say, it is simply good manners that prevents us from swearing at police office but I do often use undesirable language and in fact, the ‘young ill-educated’ would have some way to go in catching up with lawyers who, from my experience, are the worst offenders.

      I have not read the judgment yet, I will do soon, but from what I have read in this article, it is a move in the right direction. Although, the judgment does not go as far as this, I would argue that a police office can never experience alarm, distress or harassment, certainly not from the generic use of the word ‘F!*k’.

      One of the other commentators are correct when they suggest that it is an occupational hazard for Police Officers.

      1. Stephen says:

        So commonplace and normal may the use of the F-word be in some people’s vocabulary that the use of such a word in the presence of a police officer may not be intended to be disrespectful.

        It has been fairly well documented by sociologists that different language codes attach to different segments of Society. Indeed such differences define our class and influence our educational attainment. In general, middle class children have much more access to the formal codes in which education is conducted. The implication is that being born into a household where a formal code is not used is an impediment to educational attainment. it is not always a matter of manners.

        Anecdotally, in my last place of work, the Polish HR manager frequently told the Managing Director to his face that he was a “bastard”. She had no idea she was swearing – she believed she was simply chiding him for being foolish! Well, that is what she told us She got away with it too. It was fortunate for her that the MD was fond of her.

    2. Kris says:

      I know this comment was well meaning but it’s also pretty condescending. I’m not certain that people who you’ve bundled into the “lower classes” would appreciate your conclusion that swearing is a result of “ill-education”, or is class based at all.

      1. Stephen says:

        @Kris, Yes, I agree it is a bit condescending to talk of “lower classes”. i did not have other words to express the point. I do stand by the point that swear words often appear in a sentence because vocabulary is lacking. I am not saying that swearing is confined to the ill educated – just that it is more likely to appear in common place conversation.

        As an aside, David Lodge in his writing about army life, cites a driver of a jeep exclaiming, “The f***ing f***er’s f***ed!” in response to the breakdown of said vehicle. Ah, the beauty of the English language!

  7. Pritesh Rathod says:

    Yet another example of sensationalist reporting by the press, of a similar type to that which we have been hearing about this week. I doubt the reporter concerned even read the full transcript of the judgment.

    1. Adam Wagner says:

      I am almost certain that none of the articles were written having read the transcript, given that it was published on BAILII and the judiciary website many days later.

      1. As far as I can tell, the judgment was delivered extempore. All press reports were based on copy provided by one, highly-experienced, freelance reporter. The transcript was made available a few days later.

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