“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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