Southard v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FULFORD,LORD JUSTICE LATHAM |
| Judgment Date | 09 November 2006 |
| Neutral Citation | [2006] EWHC 3449 (Admin) |
| Docket Number | CO/6127/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 November 2006 |
[2006] EWHC 3449 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Lord Justice Latham
Mr Justice Fulford
CO/6127/2006
MR. SIMON MURRAY (instructed by Messrs Warner Goodman & Street, Portsmouth) appeared on behalf of the Appellant.
MR E. CRORIE appeared on behalf of the Respondent.
Introduction
On 11th August 2005 the appellant, Andrew Michael Southard, was charged with the following offence, that on 7th August 2005 he used threatening, insulting and abusive behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, contrary to section 5(1) and (6) of the Public Order Act 1986 ("the POA"). The precise details of the charge were that:
"At Portsmouth in Hampshire on 07/08/05 you used threatening abusive or insulting words or behaviour within the sight of a person likely to be caused harassment alarm or distress thereby contrary to section 5(1) and (6) of the Public Order Act."
On 16th November 2005 justices acting for the local justice area of South and South East Hampshire found the appellant guilty of that offence. Thereafter, Andrew Southard appealed against the justices' decision to the Crown Court sitting at Portsmouth. His appeal was heard and dismissed on 20th January 2006. The sentence was varied from a curfew order to a six month conditional discharge. The hearing before us was the appellant's further appeal by way of case stated.
The offence
Section 5 of the Public Order Act 1986 provides as follows:
"Harassment, Alarm or Distress
(1) A person is guilty of an offence if he -
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
(2) An offence under this section may be committed in a public place or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling….
The findings of fact by the Crown Court
These were described by the court as follows:
"5. The Crown Court heard evidence from PC 1292 Ronald Richards and PC 20579 Richard Puttock. The state of the evidence was as follows: on the night of the 7th August 2005, at a time just before midnight, Andrew Southard and his brother Adam were cycling with poor lighting, on Fratton Road, Portsmouth, when they were approached by an unmarked police car containing PC Richards and PC Puttock. On seeing the car both males pedalled off at speed into Lucknell Street and then Canal Walk whilst Adam continued up Canal Walk, pursued by the police car. Adam was stopped by PC Richards and Andrew, who had then cycled up to the police car, was dealt with by PC Puttock.
Whilst Adam was being searched by PC Richards, Andrew approached and swore at him on two occasions interfering with his search. Andrew was cautioned by PC Richards after the first swearing incident and was arrested after the second. PC Puttock stated that in his opinion the appellant had been entirely co-operative."
It is convenient to add slightly to the description given by the Crown Court of the evidence that they heard, given that in the Case Stated the court referred back expressly to the generality of the evidence adduced. PC Richards described how the appellant, whilst standing about three feet away, used his mobile telephone to take pictures of the officer's dealings with Adam Southard. While he was doing this the appellant said: "Don't fucking touch me, you can't touch him." PC Richards described his behaviour as obstructive. He said that the appellant was very agitated and wound up. The officer described the scene as follows:
"He obviously felt that what was going on was wrong and he was basically shouting we had no right to search him or his brother and he was constantly saying he was going to make complaints and taking photographs on the phone or he appeared to be taking photographs on the phone."
PC Richards said that at about the time PC Puttock was searching the appellant, he heard the latter shout: "Fuck off". He said that the appellant was interfering, although, save for the matters that I have set out above, he was uncertain as to exactly what he did in this regard, save that he was "basically interfering" and was "around me". He said that the appellant, through his actions, was making it impossible for him to search Adam. He described the appellant as agitated, wound up and disruptive throughout the incident, and that he was making complaints about what was occurring. The officer during cross-examination described the situation as follows:
"I felt threatened by [his] behaviour … by his actions, by his manner. He was very agitated. He was verbal. I was in quite a dark sort of remote area of the city. There is not a lot overlooking that area. I was with an inexperienced police officer. I was with two males, both of which basically came down to me to control and due to his manner I felt threatened …"
and a little later:
"It was his whole course of conduct, his whole manner. He was very verbal. He was very agitated. He had become very aggressive." (Transcript page 21B to E).
The officer described how the appellant used the word "fuck" five or six times (transcript page 24B).
PC Puttock's evidence was significantly different as regards the course of the incident, although in part their accounts coincided. He said that the appellant was civil to him throughout, and including during the search. The appellant on this account only started to swear and used the word "fucking" when he walked towards his brother and PC Richards who were at the rear of the police car. PC Puttock called the appellant back and warned him about his language. The appellant came back straightaway, without any problems. A little later he walked back again towards PC Richards, using the same swear word again and this led to his arrest.
A central point taken by the appellant in the court below was that the swearing by the accused towards PC Richards was not within the sight or hearing of a person likely to be caused harassment, alarm or distress thereby, given that PC Richards was an experienced police officer.
The court expressed their conclusions in the case stated thus:
"The court was of the view that PC Richards was—just—caused harassment, alarm or distress thereby and dismissed the appeal."
In giving the reasons of the court on 20th January 2006 for dismissing the appeal, Judge Pearson stated that they found that the appellant swore twice at PC Richards and that the words he used were abusive. The judge went on to say:
"We then considered whether in the particular circumstances, those words were likely to cause harassment, alarm or distress. In respect to alarm or distress our conclusion is no. Harassment, well considering the fact that PC Richards was having to deal with the search of another particular defendant notwithstanding the fact that the closest you got was some three metres away, we do take the view that that was likely to amount to harassment. It follows therefore that we have taken the view that your behaviour, not by much, crosses the line and that the offence has been made out."
This appeal
The question posed by the Crown Court for our consideration is:
"On the evidence that we heard, and on the facts as we found them to be, namely that the appellant swore on two occasions to the police officer; that the appellant was warned as to his conduct; that he was abusive towards the officer; and notwithstanding that he was an experienced officer, was likely to be caused harassment by the appellant's behaviour, was our decision to dismiss the appellant's appeal perverse in that no reasonable tribunal properly directing itself could arrive at that decision?"
The submissions
On behalf of the appellant Mr Simon Murray has advanced seven separate submissions.
The First Submission
Mr Murray argues that a better question would have been the one he submitted to the court in a draft Case Stated, namely:
"Whether the Crown Court was entitled to conclude that Andrew Southard's swearing on two occasions towards PC Richards was within sight or hearing of...
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