Director of Public Prosecutions, R (on the application of) v Humphrey

On a submission of no case to answer, the question is whether the prosecution evidence, taken at its highest, is capable of supporting a conviction by a reasonable tribunal. The court must distinguish between whether words are threatening, abusive or insulting and whether they are likely to cause harassment, alarm or distress. Evidence directed only to the speaker’s demeanour or the listener’s actual reaction may not answer the first question. Where magistrates’ reasons confuse these issues, rely on irrelevant considerations or cannot withstand analysis, their ruling may be quashed. Words directed at a person because of their Asian appearance may properly be regarded as abusive or insulting, depending on the evidence and context.

The Director of Public Prosecutions appealed by way of case stated against the decision of the Mid-Kent Magistrates’ Court on 15 December 2004. The magistrates ruled that there was no case to answer on a charge under section 5(1) of the Public Order Act 1986, alleged to be religiously aggravated under sections 28 and 31(1) of the Crime and Disorder Act 1998.

The prosecution relied principally on words addressed by the defendant to a Sikh police officer of Asian appearance. The central issue was whether, applying the no-case test, a reasonable tribunal could convict on the prosecution evidence.

1. The appeal was allowed in substance. The court answered the stated question in the negative, quashed the magistrates’ decision and ordered the matter to be reheard before a different bench.
2. The applicable test, consistent with R v Galbraith [1981] 1 WLR 1039, was whether the evidence, taken at its highest, was such that a reasonable tribunal could convict. The magistrates were not entitled to decide the submission by asking whether they themselves would convict.
3. The magistrates’ reasons failed to address the essential question under section 5(1) of the Public Order Act 1986: whether the words could reasonably be construed as threatening, abusive or insulting. Their reliance on conflicting evidence about aggression, shouting, intoxication and demeanour did not determine the character of the words.
4. The magistrates also confused the separate issue of whether the words were likely to cause harassment, alarm or distress with the issue whether the words were abusive or insulting. The relevant statutory question concerned likely impact, not merely whether the officer actually felt a particular degree of distress.
5. The fact that the listeners were police officers did not remove the possibility that the words were abusive or insulting. In context, the words addressed to an Asian person were capable of being regarded as plainly abusive. The magistrates’ conclusion that no reasonable tribunal could convict was therefore unsustainable, either because they applied the wrong test or because their analysis was flawed and perverse.

• High Court (Administrative Court): On an appeal by way of case stated, the court quashed the decision of the Mid-Kent Magistrates’ Court and ordered a rehearing before a different bench.
• Mid-Kent Magistrates’ Court: On 15 December 2004, the magistrates ruled that there was no case to answer.