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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Southard v Director of Public Prosecutions [2006] EWHC 3449 (Admin) (09 November 2006) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2006/3449.html Cite as: [2006] EWHC 3449 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Strand London, WC2 |
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B e f o r e :
MR JUSTICE FULFORD
____________________
ANDREW MICHAEL SOUTHARD | Appellant | |
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DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR E. CRORIE appeared on behalf of the Respondent.
____________________
Crown Copyright ©
Introduction
"At Portsmouth in Hampshire on 07/08/05 you used threatening abusive or insulting words or behaviour within the sight of a person likely to be caused harassment alarm or distress thereby contrary to section 5(1) and (6) of the Public Order Act."
The offence
"Harassment, Alarm or Distress
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
(2) An offence under this section may be committed in a public place or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling....
The findings of fact by the Crown Court
"5. The Crown Court heard evidence from PC 1292 Ronald Richards and PC 20579 Richard Puttock. The state of the evidence was as follows: on the night of the 7th August 2005, at a time just before midnight, Andrew Southard and his brother Adam were cycling with poor lighting, on Fratton Road, Portsmouth, when they were approached by an unmarked police car containing PC Richards and PC Puttock. On seeing the car both males pedalled off at speed into Lucknell Street and then Canal Walk whilst Adam continued up Canal Walk, pursued by the police car. Adam was stopped by PC Richards and Andrew, who had then cycled up to the police car, was dealt with by PC Puttock.
Whilst Adam was being searched by PC Richards, Andrew approached and swore at him on two occasions interfering with his search. Andrew was cautioned by PC Richards after the first swearing incident and was arrested after the second. PC Puttock stated that in his opinion the appellant had been entirely co-operative."
"He obviously felt that what was going on was wrong and he was basically shouting we had no right to search him or his brother and he was constantly saying he was going to make complaints and taking photographs on the phone or he appeared to be taking photographs on the phone."
PC Richards said that at about the time PC Puttock was searching the appellant, he heard the latter shout: "Fuck off". He said that the appellant was interfering, although, save for the matters that I have set out above, he was uncertain as to exactly what he did in this regard, save that he was "basically interfering" and was "around me". He said that the appellant, through his actions, was making it impossible for him to search Adam. He described the appellant as agitated, wound up and disruptive throughout the incident, and that he was making complaints about what was occurring. The officer during cross-examination described the situation as follows:
"I felt threatened by [his] behaviour … by his actions, by his manner. He was very agitated. He was verbal. I was in quite a dark sort of remote area of the city. There is not a lot overlooking that area. I was with an inexperienced police officer. I was with two males, both of which basically came down to me to control and due to his manner I felt threatened …"
and a little later:
"It was his whole course of conduct, his whole manner. He was very verbal. He was very agitated. He had become very aggressive." (Transcript page 21B to E).
The officer described how the appellant used the word "fuck" five or six times (transcript page 24B).
"The court was of the view that PC Richards was -- just -- caused harassment, alarm or distress thereby and dismissed the appeal."
In giving the reasons of the court on 20th January 2006 for dismissing the appeal, Judge Pearson stated that they found that the appellant swore twice at PC Richards and that the words he used were abusive. The judge went on to say:
"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."
This appeal
"On the evidence that we heard, and on the facts as we found them to be, namely that the appellant swore on two occasions to the police officer; that the appellant was warned as to his conduct; that he was abusive towards the officer; and notwithstanding that he was an experienced officer, was likely to be caused harassment by the appellant's behaviour, was our decision to dismiss the appellant's appeal perverse in that no reasonable tribunal properly directing itself could arrive at that decision?"
The submissions
The First Submission
"Whether the Crown Court was entitled to conclude that Andrew Southard's swearing on two occasions towards PC Richards was within sight or hearing of a person likely to be caused harassment alarm or distress thereby; especially when PC Richards was an experienced police officer."
The second submission
"I find nothing in the context of the Act of 1986 to persuade me that a police officer may not be a person who is caused harassment, alarm or distress by the various kinds of words and conduct to which section 5(1) applies. I would therefore answer the question in the affirmative, that a police officer can be a person likely to be caused harassment and so on. However, that is not to say that the opposite is necessarily the case, namely, it is not to say that every police officer in this situation is to be assumed to be a person who is caused harassment. 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, who else was present and so on."
The third submission
"The question is whether he suffered distress within the meaning of section 4A. The word 'distress' in section 4A takes its colour from its context. It is part of a trio of words: harassment, alarm or distress. They are expressed as alternatives, but in combination they give a sense of the mischief which the section is aimed at preventing. They are relatively strong words befitting an offence which may carry imprisonment or a substantial fine. I would hold that the word 'distress' in this context requires emotional disturbance or upset. The statute does not attempt to define the degree required. It does not have to be grave but nor should the requirement be trivialised. There has to be something which amounts to real emotional disturbance or upset."
On that foundation, Mr Murray argues that the level of harassment must be such as to lead to some kind of real emotional disturbance or upset. At the very least, he submits, if the likely reaction is no more than mere irritation or annoyance that is insufficient.
The fourth submission
"The words complained of must be insulting and words which are rude words or offensive words are not necessarily insulting."
It is worth remembering, however, that those two cases involved markedly different facts to the present appeal: in Brutus v
Cozens the defendant stepped on to a court at Wimbledon, threw around some leaflets and sat down where he was joined by others who behaved similarly; in Ambrose the defendant said to a girl of 12:
"If a boy and girl go out together to have a bunk up what does it mean?"
It is self-evident that the circumstances of those two cases were far removed from the situation that we are considering in this appeal.
The fifth submission
"A person is guilty of an offence under section 5 only if he intends his words or behaviour.... to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly."
As described above, the appellant's case was that he swore at PC Richards because the officer was allegedly acting in a heavy handed fashion and there was, it is submitted, an absence of any evidence that he intended to be threatening, abusive or insulting to the officer. Further, it is argued that such a suggestion is implausible, given the overall circumstances and not least the presence of an officer who was 6'1" tall.
The sixth submission
The seventh submission
My analysis and conclusions