Alan Holloway v DPP

Thursday, 21st October 2004

I. Introduction

Alan Holloway appeals by way of case stated against the decision of Deputy District Judge Jones sitting at Chester Magistrates' Court on 30th June 2004, convicting the appellant of an offence of disorderly conduct contrary to section 5 of the Public Order Act 1986.

This case, with its very strange facts, raises an important point on the necessary ingredients of section 5, and in particular whether it is necessary for the conduct in question to be actually witnessed by a third party before a defendant can be convicted and not merely that the conduct could have been seen by a third party.

II. The Facts

The facts found by the district judge were that on 7th May 2003 the appellant was in a countryside location using his video recorder and deliberately filming a group of school boys and school girls, who were engaging in sports activities on the nearby school playing field. While the appellant was doing this, he stood naked for some time in view of the video camera whilst the children were in the background some distance away.

It is significant that the deputy district judge found that no one saw the appellant in his naked state, although anyone could have seen him. The district judge said that the appellant could clearly have seen the children whilst in this state and that his behaviour was "insulting" within the meaning of section 5. The district judge also found, first, that anyone seeing the appellant naked in a public place, would be likely to be caused harassment, alarm or distress, and, second, that the appellant must have been aware of the likely effect of his naked state on others in a public place.

The deputy district judge found that nobody actually saw the appellant undressed or dressed in the woods with his camera on his tripod looking in the direction of the children and focusing his equipment on the children.

Another finding of the deputy district judge was that when the appellant was arrested, his JVC digital video camera and his tripod were taken from him while he was in the woods close to the school playing fields.

The deputy district judge also found that a police officer, who attended the scene on the day in question, had a clear and unobstructed view of the school and playing fields through the view-finder of the video camera. When that police officer rewound the appellant's tape, he saw, in the findings of the deputy district judge, the image of the appellant in a naked state, looking into the field, with children in the background playing in their school grounds.

The appellant admitted that he was the person appearing on that video on 7th May 2003 and he accepted that he could be seen on the video in a state of undress.

The deputy district judge also found, first, that the children were not aware of being filmed, and, second, that the video film shot by the appellant had footage of bare legs of secondary school children playing sport.

He also found that there were three occasions on which the appellant was filmed naked, watching the children who were in the background.

Another finding of the deputy district judge was that the appellant had said in evidence that he was testing out his new video camera when he stood naked filming the children, and that the reason why he filmed his naked body was that he needed to film something white, but when he did this, he had seen that no one was looking at him.

The district judge gave his reasons for convicting the appellant by explaining that:

"The decision that I have to make is whether he could be seen by anybody. On the basis of evidence I have heard and seen today I am on the facts satisfied to the required criminal standard that he must have been aware that he could be seen and that if so his behaviour was such that it was likely to cause a person seeing him, harassment, alarm or distress. On that basis I find the case proved and I find him guilty of that offence."

III. The Submissions

Miss Virginia Hayton, who appears on behalf of the appellant, submits that she accepted that the behaviour of the appellant constituted "insulting behaviour". Indeed, the question which is raised for the High Court is, "Whether a person who is not seen but could have been seen by anybody has committed an offence under section 5(1) Public Order Act 1986?" That provision, insofar as is relevant, provides that:

"(1) A person is guilty of an offence if he -

(a) uses threatening, abusive or insulting… behaviour, or disorderly behaviour…

Within the hearing or sight of a person likely to be caused harassment, alarm, or distress thereby."

The submission on behalf of the appellant is that section 5 requires the insulting behaviour to be actually witnessed by somebody. In support of that submission Miss Hayton focuses on the words in section 5(1), "within the… sight of a person." She submits that those words mean that some person must have actually seen the behaviour before anybody can be convicted of this offence.

Mr Meirion Lewis-Jones, on behalf of the respondent, says that for the appellant to be convicted of a section 5 offence it is not necessary for anybody to see the behaviour, and there is no need for the prosecution to produce anybody who has seen the offending behaviour, provided that the person whose offending behaviour is under question could have been seen by somebody.

IV. Discussion

It is common ground between counsel that there is no relevant case law on this issue, probably because the facts are so unusual. In my view it is very significant that section 5 requires the insulting words or behaviour to be "within the… sight of a person". These words mean that some person must have actually seen the abusive or insulting words or behaviour. It is not enough that somebody merely might have seen or could possibly have seen that behaviour.

There are two additional reasons which lead me to that conclusion. The first of which is to contrast the wording in section 5 of the 1986 Act (with which this appeal is concerned), with the wording in section 3 of the same Act which provides, insofar as is material, that:

"(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety."

The last few words in section 3(1) indicate that the prosecution do not need to prove or to adduce evidence from somebody, who is fearing for their own personal safety. All that needs to be done is for the fact-finders to be satisfied that a notional person of reasonable firmness would have reached that conclusion.

It is significant to note the way in which wording in section 3 contrasts with that in section 5. In my view, if Parliament had intended that an offence under section 5 would have been committed if the offensive behaviour could have been seen by somebody (even if not actually seen), then it would have inserted in section 5 a provision to that effect or perhaps wording similar to that used in section 3.

Moreover, section 3(4) of the 1986 Act...