Holloway v Director of Public Prosecutions

For an offence under section 5(1) of the Public Order Act 1986, threatening, abusive or insulting behaviour must be within the actual sight or hearing of a person likely to suffer harassment, alarm or distress. It is insufficient that a hypothetical passer-by might have seen or heard it. The prosecution need not produce an eyewitness. Evidence may suffice if the court can safely infer, to the criminal standard, that someone was present and able to see or hear the conduct at the material time.

Alan Holloway appealed by way of case stated against his conviction by a deputy district judge at Chester Magistrates’ Court for disorderly conduct contrary to section 5 of the Public Order Act 1986. He had been filmed naked while recording schoolchildren engaged in sports, but the deputy district judge found that nobody had seen him in that state. The central issue was whether conduct could fall within section 5(1) merely because somebody could have seen it, or whether the prosecution had to establish that someone was actually present and able to see or hear it.

1. Appeal allowed. The conviction was set aside, resulting in an acquittal. Any fine and costs paid were to be returned or remitted, with the appropriate order for central funds.
2. Section 5(1) of the Public Order Act 1986 requires the threatening, abusive or insulting words or behaviour to be used within the hearing or sight of a person likely to be caused harassment, alarm or distress. The phrase requires a person to have been actually present and able to see or hear the conduct at the relevant time. It does not extend to the possibility that someone might later have come upon the scene.
3. The comparison with section 3(1) and section 3(4) of the Act supported that construction. Those provisions expressly use a notional person of reasonable firmness and state that such a person need not actually be present. Parliament used no equivalent wording in section 5.
4. It was unnecessary for the prosecution to call a person who positively stated that the conduct had been seen or heard. Evidence could establish the offence if it enabled the court safely to infer, to the criminal standard, that someone in the vicinity could see or hear what was occurring at the material time.
5. On the facts found, the prosecution had not established that anyone was present and able to see the claimant naked. The possibility that someone might have walked along the path and then seen him was insufficient.

• High Court (Administrative Court): On 21 October 2004, the Divisional Court allowed the appeal by case stated against the conviction at Chester Magistrates’ Court.
• Chester Magistrates’ Court: The deputy district judge convicted the claimant on 30 June 2004 of an offence under section 5 of the Public Order Act 1986.