The Director of Public Prosecutions v Jane Distill
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Mrs Justice McGowan |
| Judgment Date | 08 September 2017 |
| Neutral Citation | [2017] EWHC 2244 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1772/2017 |
| Date | 08 September 2017 |
[2017] EWHC 2244 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
and
Mrs Justice McGowan DBE
Case No: CO/1772/2017
Mr Peter Grieves-Smith (instructed by the Crown Prosecution Service Appeals and Review Unit) for the Appellant
Mr Andrew Stone (instructed by Bonnallack and Bishop Solicitors) for the Respondent
Hearing date: 22 June 2017
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
This appeal requires us to consider the definition of a "dwelling" in section 8 of the Public Order Act 1986. The context is an alleged offence under section 5 of the 1986 Act, said to be "racially … aggravated" within the terms of section 28 of the Crime and Disorder Act 1998 and thus contrary to section 31 of that Act. Under section 5(2) of the 1986 Act, an offence is not committed where the alleged "threatening or abusive words or behaviour" in question are used by a person "inside a dwelling" and the other person is "also inside that or another dwelling".
The appeal is by way of case stated. The appellant, the Director of Public Prosecutions ("the DPP"), appeals against the dismissal by the Wiltshire Magistrates' Court, sitting at Chippenham on 18 January 2017, of proceedings against the respondent, Ms Jane D, for an alleged offence under section 31 of the 1998 Act.
The proceedings arose from an alleged incident on 31 July 2016, in which Ms D, it was said, had shouted "Polish fucking bastards, fuck off!" while in the back garden of her grandmother's property at 72 X, in Swindon, and those words were heard by the next-door neighbours at 74 X, Mr MN and his wife, A, who were in their own back garden at the time. The words Ms D was said to have used, but which she denied having used, were alleged to be, under section 5(1) of the 1986 Act, "threatening or abusive words … within the hearing … of a person likely to be caused harassment, alarm or distress thereby", and the offence was alleged to have been "racially … aggravated" under section 28 of the 1998 Act, contrary to section 31(1)(c) and (5) of that Act. It was common ground that the alleged incident had taken place wholly within the back gardens of the two adjoining properties, which comprise semi-detached or terraced houses with gardens, in a suburban area of Swindon. The back garden at 72 X extends to the rear of the house, about seven metres wide and about 27 metres long, bounded by a fence.
Ms D pleaded not guilty to the charge on 14 September 2016, and the matter was listed for trial on 18 January 2017. The solicitors acting for Ms D then sought from the magistrates' court a pre-binding ruling on the question of whether the garden in which the offence was alleged to have been committed was part of a "dwelling", as defined in section 8 of the 1986 Act. They contended that the definition of a "dwelling" must be understood as including a private garden such as this, and therefore that on the undisputed facts of this case no offence had been committed. The DPP argued to the contrary. The magistrates' court decided the question in Ms D's favour, and accordingly, when the matter proceeded to trial, ruled that there was no case to answer.
The issues in the appeal
The magistrates' court stated a case on 27 March 2017. In the case stated two questions are raised:
"1. Were we right when we ruled that the incident had occurred inside a dwelling as required by Section 5(2) and defined by Section 8(1) of the Public Order Act 1986?
2. In all the circumstances, were we correct to come to the conclusion that the defendant had no case to answer?"
The statutory provisions
Section 5 of the 1986 Act, "Harassment, alarm or distress", provides:
"5. (1) A person is guilty of an offence if he –
(a) uses threatening or abusive words or behaviour, or disorderly behaviour …
…
(2) An offence under this section may be committed in a public or private place, except that no offence is committed where the words or behaviour are used … by a person inside a dwelling and the other person is also inside that or another dwelling.
(3) It is a defence for the accused to prove –
(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or
(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or
(c) that his conduct was reasonable."
Section 8, "Interpretation", defines a "dwelling" in this way:
"8. In this Part –
"dwelling" means any structure or part of a structure occupied as a person's home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose "structure" includes a tent, caravan, vehicle, vessel or other temporary or movable structure …
…."
A person is guilty of an offence under section 31(1) of the 1998 Act if he commits "(a) an offence under section 4 of [the 1986 Act] (fear or provocation of violence)", or "(b) an offence under section 4A of that Act (intentional harassment, alarm or distress)", or "(c) an offence under section 5 of that Act (harassment, alarm or distress)", which is "racially or religiously aggravated for the purposes of this section". Section 28(1) of the 1998 Act provides that an offence is "racially or religiously aggravated" for the purposes of sections 29 to 32 if "(a) at the time of committing the offence, …, the offender demonstrates towards the victim of the offence hostility based on the victim's membership … of a racial or religious group" or "(b) the offence is motivated … by hostility towards members of a racial or religious group based on their membership of that group".
The decision of the magistrates' court
In the magistrates' court, counsel for Ms D, Mr Andrew Stone, who also appeared in this appeal, acknowledged that the 1986 Act is "silent" on the question of whether the definition of a "dwelling" in section 8 "includes a private garden such as the one in the instant case where the garden is structurally defined by a physical barrier on all sides". He observed that "case law regarding "dwelling" tends to focus instead on whether communal areas such as shared hallways form part of the dwelling (they don't), leaving the question of private gardens unanswered" (paragraph 4 of his skeleton argument). He relied, however, on the decision of the Court of Appeal in R. v Edwards and Roberts (1978) 67 Cr. App. R. 228, where a prosecution for a public order offence failed because the alleged offence was committed in the defendant's front garden, which was held to be part of his private premises (see the judgment of Bridge L.J., as he then was, at pp.231 and 234). In that case, Mr Stone submitted, the Court of Appeal "appears to have intended that relationship between 'house' and 'garden' to be indivisible" (paragraph 5 of the skeleton argument). He also pointed to section 623(2) of the Housing Act 1985, which provides that a "'dwelling-house' includes any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it", and section 63(1) of the Housing Act 1995, which provides that "'dwelling' means a building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it" (paragraph 6 of the skeleton argument). Finally, he referred to guidance given by the Crown Prosecution Service on the offence of burglary of a dwelling-house, submitting that "[given] that the offence of burglary of a dwelling requires the Defendant to be a trespasser it is clear from this that the Crown itself holds a garden to [be] part of the dwelling" (paragraph 7 of the skeleton argument).
It appears that the DPP simply pointed to the statutory provisions, and contended that the definition of a "dwelling" in section 8 of the 1986 Act does not include a private garden.
After deliberation, the magistrates gave judgment in these terms:
"The bench have carefully considered whether the garden was a public place – open to anyone, or a private place and part of the dwelling. We have concluded that it is part of the dwelling and both parties were in their private dwellings, therefore, the act does not apply."
The matter then proceeded to trial. At the end of the prosecution case, in view of their ruling at the pre-binding hearing, the magistrates ruled that there was no case to answer, and Ms D was accordingly acquitted.
On 31 January 2017 the DPP made an application to the magistrates to state a case, which they duly did.
Did the alleged incident occur "inside a dwelling"?
In advancing the appeal on behalf of the DPP, Mr Peter Grieves-Smith submitted that, to establish the scope of the exception in section 5(2) of the 1986 Act, we should concentrate on the language of sections 5 and 8 of that Act. No assistance could be gained from the meaning attributed to the words "dwelling" and "dwelling-house" in other statutory contexts. Mr Grieves-Smith acknowledged that there is no authority directly on the question of whether the definition of a "dwelling" in section 8 of the 1986 Act includes, or at least generally includes, a private garden. He submitted, however, that the definition of a "dwelling" as a "structure or part of a structure occupied as a person's home or as other living accommodation …" implicitly excludes a garden, which is not a "structure". It followed, he argued, that the gardens...
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