DPP v Chippendale
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,MR JUSTICE NELSON |
| Judgment Date | 30 January 2004 |
| Neutral Citation | [2004] EWHC 464 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5377/2003 |
| Date | 30 January 2004 |
[2004] EWHC 464 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand London WC2
Lord Justice May
Mr Justice Nelson
CO/5377/2003
MR J WYN WILLIAMS (instructed by CPS) appeared on behalf of the CLAIMANT
MR M STRAIN (SOL. ADV.) (instructed by MARTIN NIERADA SOLICITORS, SKEGNESS) appeared on behalf of the DEFENDANT
Nelson J will give the Courts' decision.
This is an appeal by way of case stated by the Crown against the decision of the Pwllheli Magistrates' Court on 9th July 2003 when they acquitted the respondent on a submission of using threatening words and behaviour which had been racially aggravated, that offence being under section 31(1)(c) of the Crime and Disorder Act 1998 and section 28 of that Act, the basic offence being under section 5 of the Public Order Act 1986.
The facts are stated in the case stated as follows:
"i. At 11.30pm on the 9th May 2003, Police Constable Williams was on patrol on the High Street in Pwllheli when he had cause to warn the respondent regarding his behaviour. The respondent was singing a song about Scousers and was affected by alcohol.
ii. After the warning, the respondent stopped singing and the Constable walked away.
iii. The respondent then started singing the same song across the road from the Turkish Takeaway within sight of the Turkish staff but had replaced the word Scousers with Turks. The song's contents was as follows:
Build a bombfire, built a bombfire, put the Turks on the top, put the Egypts in the middle and burn the fucking lot.
iv. The song was inappropriate and would have caused alarm to members of the public in the area at the time and inside the fast food establishment.
v. The respondent was arrested and later charged with racially aggravated disorderly behaviour.
4. On behalf of the respondent, it was contended on a submission of no case, that the arrest was unlawful within section 5(4) Public Order Act 1986 and section 31(3) of the Crime and Disorder Act 1998 as the Constable had failed to warn the respondent about his racially aggravated conduct pursuant to section 31(3)(b) of the 1998 Act. It followed that the Constable had acted unlawfully in purporting to arrest the respondent.
5. On behalf of the appellant, it was contended that the respondent had been duly arrested and that the requirement to warn the respondent after the racially aggravated conduct created an unnecessary obligation on the Constable."
At the close of the appellant's case the justices ruled that the appellant had no case to answer.
The basic offence is set out, as I have indicated, under section 5 of the Public Order Act 1986. Section 5(1) states:
"A person is guilty of an offence if he-
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour
…
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."
Under subsection (4) of section 5 of the Public Order Act 1986,
"A constable may arrest a person without warrant if—(a) he engages in offensive conduct which the constable warns him to stop, and
(b) he engages in further offensive conduct immediately or shortly after the warning.
Offensive conduct under section 5(4) is defined as meaning conduct,
" … the constable reasonably suspects to constitute an offence under this section, and the conduct mentioned in paragraph (a) and the further conduct need not be of the same nature." (section 5(5)
Under section 31(1)(c) the racially aggravated offence, a person is guilty of an offence under this section of the Crime and Disorder Act 1998 if he commits an offence under section 5 of the Public Order Act 1986, harassment, alarm or distress, which is racially or religiously aggravated for the purposes of this section. Under subsection (3) of section 31 of the Crime and Disorder Act 1998,
"A constable may arrest a person without warrant if—(a) he engages in conduct which a constable reasonably suspects to constitute an offence falling within subsection (1)(c);
(b) he is warned by that constable to stop; and
(c) he engages in further such conduct immediately or shortly after the warning.
The conduct mentioned in paragraph (a) above and the further conduct need not be of the same nature."
The justices, when dealing with the matter and accepting the submission, found that the reference to Turks outside the takeaway was indeed of a racialist nature. However, when the constable arrested the respondent no words were uttered to him. "We considered that a warning was a necessary element of the arrest…" the justices state in the case stated and,
"that it was particularly desirable in circumstances in which as a result of drink the respondent's understanding may have been dulled. The warning after the respondent's initial conduct—"
That is referring to the warning about his behaviour rather than any racially aggravated behaviour, "—did not serve as a warning for the purposes of section 31(3)(b)…" of the Crime and Disorder Act 1988.
We have been told during the course of submissions today that it was conceded by the Crown at the magistrates' court that if the arrest was unlawful then it would follow that the proceedings were invalid and it would be right for the matter to be dismissed on the submission of no case to answer being made.
Two points arise in this appeal by the Crown. Firstly, whether the warning given in relation to the first incident was sufficient, even though that did not give a warning about any racial element because, of course, no such words had been uttered at the time of the first incident, the recitation of the insulting verse which the respondent used relating to "scousers". The second issue is whether a warning is a necessary ingredient for the offence itself or whether such a warning under the Act is only necessary for the purposes of the arrest.
In relation to the first point it is the nature of the Crown's submission, set out in writing, that the warning was sufficient and in reliance upon the decision in Groom V DPP [1991] Crim.L.R. it is said that warnings must be looked at in a common sense way without imposing upon the police an unnecessary burden. Looking at it in that manner, no further warning was required because, in general and appropriate terms, the...
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