Director of Public Prosecutions v Richie Smith

Hearing date: 30 November 2017

Judgment Approved

On 9 January 2017 Mr Richie Smith appeared before the City of London Justices charged with two offences said to have been committed at St Pancras Station on 31 July 2016. One charge was that of using threatening or abusive words or behaviour likely to cause harassment, alarm or distress contrary to section 5 of the Public Order Act 1986. The second was the racially aggravated form of the same offence contrary to section 31 of the Crime and Disorder Act 1998.

The magistrates heard evidence from PC Wigley of the British Transport Police for the prosecution and from the defendant himself. They acquitted Mr Smith of both charges. The Director of Public Prosecutions appeals to this court by way of case stated. We therefore take the facts as helpfully set out in the case stated.

PC Wigley informed the court that he attended the platform with a fellow officer as a result of a call being received concerning two people being racially abusive on a train. After speaking to both men one grabbed his hand quite tightly which resulted in the officer and his colleague speaking to them about the need to be more gentle with people. The officer agreed that Richie Smith did not seem to understand that he was not being detained at this point. Both men were under the influence of alcohol with arms waving and they were quite loud. The area was quiet but had people around. Mr Smith said the words "niggers and Pakis" quite loud. The officer found the language quite offensive to himself and stated that obviously others would also find it offensive. It was his opinion that the proximity where people were would have meant that they would also have heard the racial comment.

Footage from PC Wigley's body camera was played to the court. This showed Richie Smith and his brother speaking to the police officers in raised voices. The area was quiet but it could be seen on the footage that there were people in the vicinity of the incident. Richie Smith can be clearly heard saying the words "niggers and Pakis": as he bends down to pick up his bags he says "go deal with some niggers and Pakis".

The defendant then gave evidence. He said that he and his brother had come on a 2 hours 45 minutes train journey from Sheffield. They had a few drinks before they got on the train and also shared a bottle of wine with a couple on the train. He and his brother could not understand why they were approached by police when they got off the train. There was then a bit of an "argy bargy" with the police before the police then let them go; because his brother had a strong handshake, however, the officers returned to them. He didn't understand that he could go and didn't hear the officer say that he was free to leave. Mr Smith was in shock and disbelief and leaned down for his bag and said "those words" for which he apologises. He stated however that he did not say them to anybody, and his girlfriend is Asian. He regrets the words used and agreed that the words "nigger" and "Paki" are abusive.

At paragraph 4 of the case stated it is noted that:-

"The disputed issue of fact or law was that Mr Smith denied that the language in question was within the hearing of anyone who was likely to be caused harassment, alarm or distress and [said] he was not drunk."

The justices did not, unfortunately, make any finding as to whether they accepted PC's Wigley's "opinion" that the proximity of members of the public in the vicinity of the incident was such that they would also have heard the racial comment.

The justices were referred to the case of DPP v Oram (1989) 88 Cr App Rep 261 and to the relevant statutes. At paragraph 10 of the case stated it is noted that they were advised in open court by their legal adviser of the mental element of the offence under s 5 of the 1986 Act as set out in s 6(4), which reads as follows:-

"A person is guilty of an offence under s.5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening or abusive or is aware that it may be threatening or abusive or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly"

I should set out in full the final three paragraphs of the case stated:-

"13. We were of the opinion that the respondent had a lot to drink that day and was intoxicated. He admitted saying the words and was very sorry for his behaviour. There is no doubt that the language the respondent used was offensive and the officer said it is unacceptable in a public place.

14. Whilst the respondent's behaviour was irresponsible we find that his intent to cause harm/distress was lacking. Accordingly the appellant has not proved beyond all reasonable doubt that the elements of the offences have been proven and so we found the respondent not guilty of both offences.

15. The question for the opinion of the High Court is: was it reasonably open to this court to acquit the respondent on the basis that his intent to cause harassment, alarm or distress was lacking given...