Harvey v DPP

On 10 March 2009, at Bradstock Road, London E9, PC Challis and PCSO Mcllvaney were looking for people who, the police had been informed, might be in possession of cannabis. They found one young woman and three young men, including the defendant, Denzel Cassius Harvey, outside a block of flats. The officers decided to search the three men. Mr Harvey objected and said, "Fuck this man, I ain't been smoking nothing". PC Challis told him that if he continued to swear he would be arrested for an offence under section 5 of the Public Order Act. PC Challis searched the appellant but found no drugs, whereupon the appellant said, "Told you, you won't find fuck all". The officer again warned him about swearing and proceeded to search the other two men. A group of people had gathered around them. The officer next used his radio to carry out a name search to see if any of the group was wanted by the police. He asked the appellant if he had a middle name and the appellant replied, "No, I've already fucking told you so". The officer arrested Mr Harvey for the offence under section 5.

A struggle ensued during which PC Challis alleged that the appellant assaulted him. The appellant was in due course charged, firstly with assault on a police officer in the execution of his duty, and secondly with using threatening, abusive or insulting words or behaviour contrary to section 5 of the 1986 Act. He was convicted on the latter charge and fined £50. He was acquitted on the charge of assault. I mention it as part of the history because some people learning of this appeal by way of case stated from the conviction might wonder whether it was a wise use of resources for him to have been prosecuted under section 5 in the first place, had that charge stood alone; but it came before the magistrates accompanying the much more serious one of assault on the constable.

The prosecution relied on the three incidents of swearing in the exchanges to which I have referred. Such language is familiar to most courts. A search on the legal database Lexis for cases in which either the word "fuck" or the word "fucking" appear produces 2,124 results. Even allowing for duplication in the way that cases are reported and transcribed, or for cases which appear in more than one report, the total is still very large. Fortunately Mr Natas for the appellant, and Mr Leonard for the respondent, in their concise and helpful submissions, only found it necessary to cite six of the many cases which bear on this vexed topic. They show a clear line of authority.

It is important to note that before the magistrates neither officer gave evidence of having been harassed, alarmed or distressed. The nearest anyone came to this is that PC Challis was asked if the word "fuck" justified an arrest and replied that it depends on the circumstances, but here it was said loudly and clearly. Nor was there evidence of anyone else having been harassed, alarmed or distressed. In paragraph 5 of the case stated, the justices wrote:

"We were of the opinion that the offence under Section 5 of the Public Order Act 1986 had been proved. We believed that this was a public area in the middle of a block of flats: there were people around who do not need to hear frightening and abusive words issuing from a young man. It was not only the words but the tone in which they were said which causes alarm."

As Mr Lenard observed in his submissions for the prosecution, the last sentences are ungrammatical, and the mixture of the present tense and past tense makes it difficult to say whether these were findings of facts or general propositions.

The justices went on to state three questions for the opinion of this court:

"(i) As part of the reason for the decision that Denzel Harvey had committed the offence alleged under Section 5 of the Public Order Act 1986, were the justices entitled to conclude that the use by the Appellant of the words "Fuck this man. I ain't been smoking nothing", and "Told you you wouldn't find fuck all", and "No. I've fucking told you no", amounted to threatening, abusive or insulting words and/or behaviour or disorderly conduct.

"(ii) As part of the reason for their said decision were the justices entitled to conclude that either Police Constable Challis or Police Community Support officer Mcllvaney were likely to have been caused harassment, alarm or distress as a result of the use by the Appellant of the said words referred to in (i) above, in the absence of any specific evidence that either officer felt threatened by the Appellant's conduct or felt harassed, alarmed or distressed.

"(iii) As part of the reason for their said decision were the justices entitled to include that the bystanders who witnessed the incident or who may have been in the open area of the flats or resident in their homes were persons likely to have been caused harassment, alarm or distress, in the absence that any specific evidence that such result was likely." [emphasis added]

A number of cases establish that expletives such as "fuck" or "fucking" are potentially abusive words, whether the addressee is a police officer or a member of the public. But Parliament has not made it an offence to swear in public as such. The elements of the offence under section 5 (1)(a) of the Public Order Act 1986 (so far as it relates to the words) are that the defendant used threatening, abusive or insulting words within the hearing of someone else who was caused or was likely to be caused harassment, alarm or distress by hearing them. In DPP v Orum [1989] 88 Cr App Rep 261, Glidewell LJ said:

"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, and so on."

To like effect is the judgment of Fulford J, sitting in the Divisional Court, in Southard v...