Taylor v DPP

This is an appeal by way of case stated from a decision of District Judge Black sitting at Tower Bridge Magistrates' Court on 30th March 2005. By that decision the judge convicted the appellant, Selena Taylor, of an offence of the use of threatening, abusive and insulting words or behaviour contrary to section 5(1)(a) of the Public Order Act 1986 ("the 1986 Act") which was racially aggravated, contrary to section 31(1)(c) of the Crime and Disorder Act 1998. The appellant was ordered to pay a fine of £100.

The facts as set out in the case can be briefly put. In the early hours of 2nd December 2004 two police officers attended an address in Walworth, South East London, after a call for assistance from the ambulance service. Mr Hazel answered the door and the officers entered. According to PC Duly the appellant was shouting that she had been assaulted. Mr Hazel appeared to be intimidated by the defendant and asked the police to remove her from the premises. The appellant's breath smelt of alcohol. On her way out of the premises, when the ambulance crew were still present, she continued to shout and swear, including the words "he had a fucking nigger here, fucking her." She was warned about her language and replied: "I don't care. That is how I call them." She tried to gain as much attention from the neighbours as possible and continued to shout, scream and swear. The officer said that he then heard the appellant shout: "that fucking coon bitch, fucking police." There was evidence that the street was very quiet at the time and that lights were turned on in the homes of the neighbourhood.

The appellant had in her evidence denied using any racist language but said that she told the police officers to fuck off after they insulted her. The District Judge found "as a fact" that she did use such language. He found that she shouted things like "fucking nigger" and "fucking coon bitch", along with a good deal of other bad language. He says in the case stated:

"That I found was racially aggravated. The words are undoubtedly abusive. Anybody hearing that sort of language, black or white, would be likely to be caused distress. I had a fair idea that drink played a large part in this. I found the racially aggravated case proved."

The District Judge states later in the case, in the final paragraph, that he was of the opinion that two policemen, an ambulance crew, Mr Hazel and several neighbours were near enough to hear this racially abusive language and "that anybody hearing that sort of language, black or white, would be likely to be caused distress thereby."

It is submitted on behalf of the appellant that those last matters described by the District Judge as being "his opinion" were not findings of fact and were not expressed in open court at the time. Mr Rudolph, who appears on behalf of the appellant, has argued that the District Judge in that part of the case has gone beyond what he said at the time as recorded in a note sent to the appellant's solicitors when they were seeking to have a case stated. The note recorded what I have earlier said the District Judge found as facts. In particular, it is emphasised on behalf of the appellant that those findings of fact do not record that anyone heard the appellant use the words complained of. It is accepted that PC Duly did, since he, after all, gave evidence that the appellant said them. He must have done, but there was no finding that the other police constable, PC Sue, heard the words or that the ambulance crew, Mr Hazel, or several neighbours heard or were near enough to hear the racially abusive language. In reliance on the decision in Evans v DPP [2001] EWCH 369 (Admin), Mr Rudolph describes the District Judge's "opinion" in that final paragraph as a gloss on the reasons for the decision.

For my part, though I see some limited force in this argument, I do not believe that it can succeed. The evidence as recorded in the case was that, first, the ambulance men were still present when the appellant was on her way out of the premises and was continuing to shout racist language. This was not denied by the appellant's evidence as recorded in the case stated. Clearly, the ambulance crew were able to hear her words. Secondly, the evidence was that she was trying to gain attention from the neighbours and was succeeding. This was a quiet street. Lights were being turned on in the houses in the neighbourhood. None of that evidence again seems to have been disputed. While I accept that it would have been better if the District Judge had spelt out his findings of fact in greater detail, it seems to me that his statement about who was near enough to hear the racial abuse was inherent in the earlier part of the case, at least as far as PC Duly, the ambulance crew and several neighbours were concerned.

The issues then raised relate both to the offence under section 5 of the 1986 Act and to its racially aggravated form under the 1998 Act. Section 5(1)(a) of the 1986 Act makes it an offence to use.

"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."

Section 5(2) provides, in effect, that no offence is committed where the words or behaviour are used by a person inside a dwelling and the other person who hears or sees it is also inside that or another dwelling.

It is first submitted by Mr Rudolph that it is not enough for there to be a finding that others are "near enough to hear." It must be found that someone did actually hear if this offence is to be proved, insofar as it is based upon the words "within the hearing of". For that proposition reliance is placed on the judgment of Silber J in Holloway v DPP [2004] EWHC 2621 (Admin), a case dealing with the words "within the sight of a person" in section 5. Silber J there said at paragraph 17:

"These words mean that some person must have actually seen the abusive or insulting words or behaviour. It is not enough that somebody merely might have seen or could possibly have seen that behaviour."

A somewhat different approach was adopted in that case by the other member of the court, Collins J, certainly insofar as the first part of the quotation from Silber J is concerned. Collins J emphasised the fact there was an express finding by the deputy District Judge in that case that no one saw the appellant whilst he was behaving in an insulting way. Collins J stated at paragraphs 28 and 29 of the decision as follows:

"The question then is what is meant by the words 'within the hearing or sight' of a person. I entirely agree that it is not sufficient to establish that someone might have come on the scene and therefore might have seen what the individual who is charged was doing. I assume, in what I say now, that whatever he was doing was threatening, abusive or insulting within the meaning of the section.

29. What, in my view, is required is that there is at least evidence that there was someone who could see, or could hear, at the material time, what the individual was doing. There is, in my judgment, on the facts of this case, a clear distinction to be drawn between what might have happened if someone had come on the scene and what in fact did happen."

Collins J went on to add at paragraph 32:

"It may be that what I am saying goes to the evidence which has to be called in order to establish this offence because I do not believe it to be necessary that the prosecution call a person or persons who can say that they did see what was happening. The evidence must be sufficient, so that the court can draw the inference, having regard to the criminal standard, that what he was doing was visible to or audible to people who were in the vicinity at the relevant time. Provided that is established this offence can be made out."

Insofar as there is any difference between the two approaches in the case of Holloway, Mr Rudolph submits that Silber J's approach is to be preferred. The phrase "within the hearing" means that the prosecution must establish that someone actually heard the words in question. The prosecution must normally call that person, although Mr Rudolph accepts that that might not be required in every case. He acknowledges that there may be cases where there is other evidence that the victim heard and was caused harassment, alarm or distress by the words in question. But he argues that there is no evidence here that anyone, apart from PC Duly, actually heard the words. If that is right, then one is left, it is said, with only PC Duly when one comes to consider the test as set out in the remaining part of the subsection.

Mr Rudolph then goes on to argue as a consequence that there is no finding that PC Duly was likely to be caused distress. The District Judge's finding was simply that "anybody hearing that sort of language, black or white, would be likely to be caused distress." It is submitted that that sort of finding is not enough. It is argued that the issue is not whether a reasonable person would be likely to be caused distress, but whether the individuals who heard the words in question were themselves likely to be caused distress or harassment or alarm. It is, says Mr...