Southard v Director of Public Prosecutions [2006] EWHC 3449 (Admin)

Case No CO/6127/2006[2006] EWHC 3449 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 9th November 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE LATHAM
MR JUSTICE FULFORD
ANDREW MICHAEL SOUTHARD
Appellant
-v-
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
(Computer-Aided Transcript of the Stenograph Notes of
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MR. SIMON MURRAY (instructed by Messrs Warner Goodman & Street, Portsmouth) appeared on behalf of the Appellant.
MR E. CRORIE appeared on behalf of the Respondent.
J U D G M E N T
Between
SouthardClaimantDirector of Public ProsecutionsDefendant

MR JUSTICE FULFORD: Introduction

[2]On 11th August 2005 the appellant, Andrew Michael Southard, was charged with the following offence, that on 7th August 2005 he used threatening, insulting and abusive behaviour within the hearing or 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 1986 ("the POA"). The precise details of the charge were that:
"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."
[3]On 16th November 2005 justices acting for the local justice area of South and South East Hampshire found the appellant guilty of that offence. Thereafter, Andrew Southard appealed against the justices' decision to the Crown Court sitting at Portsmouth. His appeal was heard and dismissed on 20th January 2006. The sentence was varied from a curfew order to a six month conditional discharge. The hearing before us was the appellant's further appeal by way of case stated. The offence[4]Section 5 of the Public Order Act 1986 provides as follows: "Harassment, Alarm or Distress[5](1) A person is guilty of an offence if he - (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[7]These were described by the court as follows:
"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."
[8]It is convenient to add slightly to the description given by the Crown Court of the evidence that they heard, given that in the Case Stated the court referred back expressly to the generality of the evidence adduced. PC Richards described how the appellant, whilst standing about three feet away, used his mobile telephone to take pictures of the officer’s dealings with Adam Southard. While he was doing this the appellant said:
"Don't fucking touch me, you can't touch him."
PC Richards described his behaviour as obstructive. He said that the appellant was very agitated and wound up. The officer described the scene as follows:
"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).[9]PC Puttock's evidence was significantly different as regards the course of the incident, although in part their accounts coincided. He said that the appellant was civil to him throughout, and including during the search. The appellant on this account only started to swear and used the word "fucking" when he walked towards his brother and PC Richards who were at the rear of the police car. PC Puttock called the appellant back and warned him about his language. The appellant came back straightaway, without any problems. A little later he walked back again towards PC Richards, using the same swear word again and this led to his arrest.[10]A central point taken by the appellant in the court below was that the swearing by the accused towards PC Richards was not within the sight or hearing of a person likely to be caused harassment, alarm or distress thereby, given that PC Richards was an experienced police officer.[11]The court expressed their conclusions in the case stated thus:
"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[12]The question posed by the Crown Court for our consideration is:
"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[13]On behalf of the appellant Mr Simon Murray has advanced seven separate submissions. The First Submission[14]Mr Murray argues that a better question would have been the one he submitted to the court in a draft Case Stated, namely:
"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[15]Mr Murray argues that it is essential not to lose sight of the legislative requirement that the activity occurred in the presence of a person "likely" to be caused harassment by the activity rather than it being a requirement that the individual officer was in fact so affected. Mr Murray, correctly in my view, submits that it is important to look at the target of the behaviour, and that generally police officers are expected to be of greater fortitude than the average person as regards the likelihood of being offended or affected, for instance, by unruly behaviour. As Glidewell LJ said in DPP v Orum (1989) Cr.App.R 261:
"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[16]Against that background Mr Murray argues that the word harassment has to be interpreted by reference to the context in which it appears in this particular penal provision. It is one of three possible factors, "harassment, alarm or distress". Mr Murray submits that although they are alternatives, the meaning of "harassment" here is in part influenced by what he describes as the severity of the other two possibilities. He finds some support for this contextual argument in the judgment of Toulson J in R v DPP [2006] EWCH 1375 (Admin), with which Richards J agreed when his Lordship was considering the word "distress":
"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[17]Mr Murray next argues that the alleged insulting words -- the appellant swore and used the word "fucking" twice -- cannot amount to threatening, abusive or insulting words or behaviour, or disorderly behaviour. It is suggested, given on the appellant's case he was merely expressing annoyance at the heavy handed way he perceived his brother was being treated at the hands of PC Richards, the words he used fell short of threatening, abusive or insulting behaviour. Mr Murray supported this argument by reference to the House of Lords decision in Brutus v Cozens [1973] AC 854. In considering s. 5 of the Public Order Act 1936 (which on this element of the offence was similarly worded), the House of Lords emphasised the courts must bear in mind that behaviour causing resentment, protest or annoyance may not amount to threats, abuse or insults. In a similar vein, Lawton LJ observed in R v Peter Thomas Ambrose (1973) 57 Cr.App.R 538, 54O:
"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[18]Mr Murray reminded the court that the prosecution must prove the accused had the necessary intention to commit this offence. The following is provided by section 6 of the Public Order Act. By subsection (4):
"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[19]Put briefly, it is argued that this legislation is aimed at occasions of real public disorder and that these charges should not be used where police officers are the only target of the alleged bad behaviour, particularly when the incident is relatively trivial. Mr Murray submits that generally this provision should not be used inappropriately. Instead, the police should consider using any available alternative charges which more properly relate to the discharge of their functions, such as the offence of obstructing a constable under section 89 of The Police Act 1996. The seventh submission[20]Finally, Mr Murray submits that the hesitation, as he described it, expressed by the court in describing its findings, reveals the real possibility that they had not found the offence proved to the criminal standard. Mr Murray asks rhetorically if a court can properly be sure of something if it finds that the charge is "just" made out. My analysis and conclusions[21]However the question is framed, in my judgment the issue for us is whether the evidence before the court was capable reasonably of supporting the conclusions the court reached. It has been necessary to rehearse in a little detail the testimony of the officers for the purpose of analysing whether there was sufficient evidence to establish the ingredients of the offence. Although the officers did not give identical evidence, PC Richards' account was part of the evidence before the court on which it was entitled to act. That officer described an agitated, swearing defendant who in a somewhat remote place was interfering with, and indeed for a period rendered impossible, the search of the appellant's brother.[22]In my view, whether 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, but on these facts, during an incident in which the appellant was strongly opposing the detention of his brother, they were delivered in a situation which sustainably led the court to conclude that they were abusive. I stress that the decision on an issue of this kind will always be fact dependent.[23]Turning to the question of whether the officer was likely to be "caused harassment", I am unpersuaded by Mr Murray's argument that the level of abuse must be that it was likely to lead to some kind of real emotional disturbance or upset on the part of the person or the people targeted by the unruly behaviour or remarks. Harassment, alarm or distress do not have the same meaning. Whilst I respectfully agree with Toulson J's analysis of what is required in this regard for distress [see R v DPP above] I do not consider that the same applies to harassment. Distress by its very nature involves an element of real emotional disturbance or upset but the same is not necessarily true of harassment. You can be harassed, indeed seriously harassed, without experiencing emotional disturbance or upset at all. That said, although the harassment does not have to be grave, it should also not be trivial. In other words, the court has to find that the words or behaviour were likely to cause some real, as opposed to trivial, harassment. On this issue, in my judgment it was open to the court below to find that these words had that likely effect in the circumstances of this case.[24]Although officers are undoubtedly expected to be stoical, I do not consider that provides any real assistance to the appellant on the facts of this case. The abusive words were directed by the appellant at a police officer during an incident in which for a period he was making it impossible for the officer to detain a suspect. In those circumstances, however phlegmatic the officer may have been, it was a sustainable decision that a likely effect was to cause him some real harassment. Moreover, I see no basis for the original written argument that this criminal provision is not available when police officers alone are the likely audience or target. It is easy to think of many different situations in which police officers could be caused grave harassment, alarm or distress as a result of abusive words or behaviour – for instance, during an incident of serious public disturbance when they are particularly singled out as the target of an attack. Charging an offender under section 5 would be a singularly appropriate step in those circumstances, either if the evidence against the accused did not support other more serious offences or as a lesser alternative charge.[25]On the subject of the appellant's intention, he directed his words deliberately at the officer. Although his principal purpose may have been to stop the officer dealing with his brother, given the clear significance and meaning of the words "fuck off" or "fuck you", the court was, in my judgment, entitled to conclude that he intended to abuse the officer or was aware that his words may have that effect.[26]Finally, although the court considered that the facts of this case came near to the borderline as to whether the ingredients of the offence were made out, it is clear that they concluded, so that they were sure, that it fell on the side of the line that meant that they had to dismiss the appeal. The recognition by a court that the circumstances do not reveal grave criminality is an appropriate acknowledgement of the level at which the offending occurred and does not in itself detract from the certainty or legitimacy of the decision reached.[27]Attractively presented and cogently argued though they were, I reject each of Mr Murray's submissions. For my part I would dismiss this appeal.

LORD JUSTICE LATHAM: I agree.

[29]MR MURRAY: May I have a detailed assessment if I require it.

LORD JUSTICE LATHAM: Yes.

Cited in 1 later judgment