Le Vine v DPP [2010] EWHC 1128 (Admin)

Case No co/4271/2010[2010] EWHC 1128 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 6th May 2010
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE KEITH
Between
LE VINEClaimantv
Between
DPPDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR SEELIG appeared for ClaimantMR BLAKE appeared for Defendant
J U D G M E N T

LORD JUSTICE ELIAS:

This

[1]is an appeal by way of Case Stated from a decision of District Judge Simpson sitting at the West London Magistrates' Court when on 20 January 2010 he convicted the appellant of an offence contrary to section 4A(1) and (5) of the Public~Order~Act 1986. The issue raised in this appeal is the meaning of the word 'dwelling' within section 8 of the 1986 Act. More specifically it is whether a laundry room which is used communally by tenants in sheltered housing property constitutes a dwelling for the purposes of that section.[2]The relevant facts as found by the judge are set out in the Case Stated as follows: (1). the appellant and Mrs Gerlach were residents in separate self-contained independent living flats, amongst others, in sheltered accommodation at 22 Pembridge Villas; (2). all residents of 22 Pembridge Villas have the use of communal entrances and if they wish a lounge, a toilet, and a small laundry room in the basement; (3). on 26 September 2009 Mrs Gerlach wished to use the washing machine and dryer in the communal laundry room, which is restricted to residents; (4). at that time the appellant had a visitor who was using the machine, so Mrs Gerlach spoke to her in the visitors lounge and indicated she would return to use the machine when it had finished its cycle; (5). when Mrs Gerlach returned the cycle had finished and she took the visitor's washing from the machine and loaded her own; (6). the appellant then entered the laundry room, shouting at Mrs Gerlach, "you fucking bitch, who do you think you are, putting your dirty hands in the laundry?”, followed by, "you fucking cunt, I am going to knock your block off", words which were intended to cause Mrs Gerlach alarm and distress. He then left the premises to go to the laundrette.[3]The relevant legislation is this: section 4A of the Public~Order~Act states in broad terms that a person is guilty of an offence if with the intent cause another person harassment, alarm or distress he uses threatening, abusive insulting words or behaviour, thereby causing that other person harassment, alarm or distress. Section 4A(2) is as follows:
"an offence under this section may be committed in a public 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 distributed or displayed by a person inside a dwelling and the other person is also inside that or another dwelling."
Section 8 then defines dwelling in the following way:
"Dwelling means any structure or part of a structure occupied as a person's home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose structure includes a tent, caravan, vehicle, vessel or other structure."
[4]The short point, as I say, is whether a laundry room was embraced within the concept of 'dwelling'. The prosecution said that it was not part of the homes of either of the parties, nor was it living accommodation. The appellant contended that it was part of the home.

The judge expressed his conclusions as follows:

"I was of the opinion that each flat within 22 Pembroke Court was a self contained, independent dwelling occupied by each resident as their home. The fact that residents could, if they wished to, go to the basement to use a communal laundry facility does not make that room part of the resident's home or other living accommodation."
Accordingly, he convicted the appellant but posed the following question for the opinion of this court:
"Was I correct in finding that the laundry room within a sheltered housing property was not a dwelling for the purposes of section 8 of the Public~Order~Act 1986?"
[5]Mr Blake, counsel for the appellant, in his skeleton argument focused in particular on the origins of section 4A. He said it is plain that Parliament would not have contended that communal property of this kind should fall outwith the definition of a dwelling. The predecessor of section 4A was section 5 of the Public~Order~Act 1936 which rendered certain acts done with intent to provoke a breach of the peace, or whereby a breach of the peace was likely to be occasioned criminal acts, but only providing they took place in any public place or at any public meeting. He referred us to the White Paper entitled "Review of Public Order Law" presented to Parliament in May 1985. It considered the scope of the law was too narrow, because certain kinds of disorder were taking place on private property, albeit that they were having an effect in the public domain. For example there were at the time threats made by miners during the miners strike when they were on private land owned by the National Coal Board, but some of the victims were on the public high way, but the white paper indicated that the Government did not want to extend the law into peoples’ homes. Paragraph 3(8) concluded as follows:
"The government therefore proposes to extend this rule, [that is (5)] but in order to exclude domestic disputes there will be a proviso that the offence cannot be committed inside a private dwelling house."
I confess I gain little assistance from the statement within the White Paper. It is indeed plain from the legislation that the intention is not to criminalise unacceptable criminal behaviour of this kind, under section 4 at least, where it occurs in a dwelling, but the only safe guide for determining what the concept encompasses is is, to my mind, to focus on the statutory definition itself. It does not assist to simply assert in a relatively loose way that this could properly be described as a domestic dispute. We were referred to two authorities bearing on the proper construction of the section. In Rukwira v Director of Public Prosecutions [1993] Criminal Law Reports 1882 there was a fracas on the landing in a council block of flats. Access to the landing was gained by an entry phone system controlled by the, occupants of the individual self contained flats. The question for the Divisional Court was whether the communal landing fell within the definition of a dwelling under section 8. The Divisional Court held that it did not. The judgment of the court was given by Macpherson J and Kennedy LJ agreed with his judgment. Macpherson J said that the answer to the question had to be found by focusing carefully on the statutory definition. He held that the common parts in issue in that case were the means of access to the living accommodation, but they were not part of the dwelling itself, that they were not part of the structure occupied as a person's home, and they could not properly be described as living accommodation because the householder lived inward of the front door, and not outward onto the common landing. In Francis [2007] 1 Weekly Law Reports 1021 the question is whether a police cell is a dwelling within the meaning of the section. The Court of Appeal held that it was not. Moses LJ, giving the judgment of the Court (Moses LJ, Goldring J, and His Honour

Judge Martin Stevens QC) said this:

"The area where a person may indulge in the conduct prohibited by section 4A with impunity are accordingly narrowly confined. Such areas are confined to a structure or part of the structure which is occupied as a person's home or the living accommodation. There is no exception in relation to the areas where such an offence may be committed in relation to near accommodation. The concept of other living accommodation takes its meaning from association with the concept of a person's home."
The appellant submits that Rukwira is plainly correct, but has no direct relevance to this case, because a landing does not have a domestic function in the same way a laundry room does.[6]Mr Seelig, for the defendant, submits that Rukwira is still material to this extent: just as the landing was not in the sole occupation of any single tenant, similarly here the laundry room is communal and not within the control of any individual as part of his or her dwelling house. The fact that it is used for a domestic purpose is neither here nor there; the question is whether it is part of the dwelling within the meaning of section 8.[7]I accept that the case is not as clear as Rukwira, precisely because the room is used for domestic purposes, but that is not a sufficient basis to engage section 8. The crucial question is still whether it can be described as part of a structure which is occupied as part of an appellant's home. I do not think it can be so properly described. In my judgment it is a communal room shared by those who live in a number of homes within the building, but cannot be properly described as part of the structure of any individual home in this building. I do not find this an unsatisfactory conclusion. The communal room is open to a number of persons. It is true it is limited to those who are in the flats or those connected with people in the flats, and to that extent it is only a small section of the public, but in my judgment the interpretation of the section I have given is compatible with a principle which is seeking to exclude disputes in people's homes, but not otherwise.[8]Accordingly, it follows that the appeal fails and the conviction is up held. The answer to the question posed by the District Judge is that he was right to find that the laundry room within the sheltered housing was not a dwelling for the purposes of the Public~Order~Act.

MR JUSTICE KEITH: I agree.

[10]MR SEELIG: My Lord, I am sorry to rise at this point. I appreciate the appellant is legally aided. I am instructed to apply for a contribution to the respondent's costs of some £600. I put it no stronger than that.

LORD JUSTICE ELIAS: Is there any point, he is legally aided.

[12]MR SEELIG: I take it possibly not, I am communicating my instructions.

LORD JUSTICE ELIAS: Well, yes.

[14]MR BLAKE: In addition to him being legally aided, he is in receipt of disability living allowance and income support. He is not in receipt of any--[15]MR SEELIG: My Lord, I withdraw the application.[16]MR BLAKE: I am grateful.

Cited in 1 later judgment