Public Order Act 1986, S. 5: Religiously Aggravated Behaviour

AuthorChris Newman
DOI10.1350/jcla.2005.69.6.457
Published date01 December 2005
Date01 December 2005
Subject MatterDivisional Court
Divisional Court
Public Order Act 1986, s. 5: Religiously Aggravated
Behaviour
R (on the application of DPP) vHumphrey [2005] EWHC 822
The respondent, H, had been charged inter alia with using threatening,
abusive or insulting words and behaviour which was racially aggravated
in accordance with s. 28 of the Crime and Disorder Act 1998. On 15
April 2004, two police officers were called to an address in Maidstone at
10.15 pm. The respondent was in a neighbouring garden, unsteady on
his feet and apparently upset about his children. One of the officers, a
Sikh of Asian appearance, spoke to the respondent. The respondent said
to the officer: ‘You’re fucking Islam’ and ‘Kalima’ which the respondent
believed to mean ‘devil’. The police officer considered that these words
were said in an aggressive manner and that he believed the remarks
were made in relation to his ethnic appearance. The respondent was
then arrested and charged. The basic offence of using threatening,
abusive or insulting behaviour is contrary to s. 5 of the Public Order Act
1986. Section 31(1)(c) of the 1998 Act creates a new racially aggravated
public order offence which relies on the commission of the basic offence
contrary to s. 5 of the 1986 Act together with a racially aggravated
element.
At trial, the respondent contended that the words used in context
were neither abusive nor threatening and argued inter alia that ‘Islam’
was not an abusive statement and ‘fucking’ was a frequently misused
epithet in common speech. Accordingly, the respondent made a submis-
sion of no case to answer based on the principles set out in Rv Galbraith
[1981] 1 WLR 1039 in that taking the prosecution case at its highest,
there is no evidence of the basic offence under s. 5 of the 1986 Act or the
evidence was of such a tenuous character that the magistrates, properly
advised, could not properly convict.
The magistrates were of the opinion that the prosecution case was
based solely on the words ‘You’re fucking Islam’ and no others. Accord-
ingly, as the respondent was intoxicated and saying all manner of things,
the comment did not make sense and could not reasonably be construed
as threatening, abusive or insulting in the circumstances of this case,
especially as the remark was made in the presence of two police officers.
The justices therefore accepted the respondent’s submission of no case to
answer. As the basic offence under s. 5 of the 1986 Act had not been
made out, the justices did not go on to consider the religious aggravation
under s. 28 of the 1998 Act.
The prosecution appealed by way of case stated with only one key
question to be addressed, namely whether in the circumstances of the
case the justices were correct to conclude that there was no case to
answer. It was held by the court that such an inquiry essentially involves
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