Swearing and s. 5 of the Public Order Act 1986
| Published date | 01 April 2013 |
| DOI | 10.1350/jcla.2013.77.2.823 |
| Author | Graeme Broadbent |
| Date | 01 April 2013 |
| Subject Matter | Divisional Court |
Swearing and s. 5 of the Public Order Act 1986
Harvey v DPP [2011] EWHC 3992 (Admin)
Keywords
Public order; Police officers; Language; Stop and search;
Causing harassment, alarm or distress
Police officers, acting on intelligence, were looking for people in posses-
sion of cannabis. They came upon a group of people outside a block of
flats and decided to search three men, including the defendant, H, who
said to the officer ‘Fuck this man, I ain’t been smoking nothing’. The
officer warned H that if he continued to swear he would be arrested
under s. 5 of the Public Order Act 1986. He was searched but the officer
found nothing. The defendant then said: ‘Told you, you won’t find fuck
all’. The officer again warned H that he would be arrested if he con-
tinued swearing. The officers decided to carry out a name search and H
was asked whether he had a middle name, to which he replied ‘No, I’ve
already fucking told you so’. The defendant was then arrested and
subsequently charged and convicted of an offence under s. 5 of the
Public Order Act 1986, namely, using threatening, abusive or insulting
words or behaviour within the hearing or sight of a person likely to be
caused harassment, alarm or distress thereby. The police officers gave no
evidence that they had in fact been harassed, alarmed or distressed. The
only other people in the vicinity were some young people, none of
whom gave evidence of being harassed, alarmed or distressed. The
magistrates posed three questions for the Administrative Court, asking
whether they were entitled to find that the defendant’s words amounted
to threatening, abusive or insulting words and/or behaviour; whether
they were entitled to convict in the absence of specific evidence that the
officers were harassed, alarmed or distressed; and, in the absence of such
evidence from the officers, whether they could convict in the absence of
evidence that anyone else was harassed, alarmed or distressed.
HELD, QUASHING THE CONVICTION, whilst the words used could
amount to threatening, abusive or insulting words and/or behaviour,
there was no evidence from either the officers or anyone else that they
were harassed, alarmed or distressed.
COMMENTARY
The spoken word does not translate well into written prose. The words
used, or allegedly used, by the defendant can be seen, but not heard. So
much is lost. The exact way in which they were spoken, the volume...
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