CPS Leicester, R. v

The dwelling exception in section 4A(2) of the Public Order Act 1986 is narrowly confined. The expression other living accommodation in section 8 takes its meaning from its association with a person’s home. A place is not living accommodation merely because a detainee may eat, sleep or wash there.

A police cell is a place of detention in custody, not a structure occupied as a home or other living accommodation. Where no reasonable argument supports the statutory category, the judge must rule on the issue as a matter of law and direct the jury accordingly.

CF faced an allegation at Leicester Crown Court of causing racially aggravated alarm or distress contrary to section 4A of the Public Order Act 1986. The alleged remark was made to a police officer while CF was detained in a police cell.

The trial judge accepted the defence submission that the cell was other living accommodation within section 8 of the Act. He therefore ruled that the dwelling exception in section 4A(2) prevented the offence from being committed. The prosecution appealed under section 58 of the Criminal Justice Act 2003. The central issue was whether a police cell could fall within that exception.

1. Appeal allowed. The judge’s ruling was wrong. A police cell does not fall within the dwelling exception in section 4A(2) of the Public Order Act 1986.

2. Section 4A permits the offence to be committed in either a public or private place. The exception is therefore narrow. It applies only where the relevant words or behaviour occur inside a dwelling and the person affected is also inside a dwelling.

3. Under section 8, a dwelling is a structure or part of a structure occupied as a person’s home or as other living accommodation. The latter expression takes its meaning from its association with a home. A detained person’s temporary eating, sleeping or washing in a cell does not make that cell living accommodation.

4. A police cell is a place in which a person is detained in custody. It is not a place occupied as a home or as other living accommodation. There was no reasonable argument to the contrary.

5. The judge had to decide whether the cell was legally capable of falling within the statutory category. Only if a reasonable argument existed would the issue be one for the jury. The judge should instead have ruled that the cell could not qualify and, if the matter were contested, directed the jury accordingly.

6. No jury had been sworn and CF had not been arraigned. The court ordered a fresh trial under section 61(4)(b) of the Criminal Justice Act 2003.

• Court of Appeal (Criminal Division) — allowed the prosecution’s appeal under section 58 of the Criminal Justice Act 2003 and ordered a fresh trial under section 61(4)(b): [2006] EWCA Crim 3323.
• Leicester Crown Court — ruled that a police cell was other living accommodation within the dwelling exception in section 4A(2) of the Public Order Act 1986.