Taylor v Director of Public Prosecutions

For an offence under section 5 of the Public Order Act 1986, the prosecution need establish evidence that a person was able to hear or see the threatening, abusive or insulting conduct. It need not prove by calling that person that the words were actually heard or the behaviour actually seen. The evidence must exclude a merely possible observer. For racial aggravation under section 28(1)(b) of the Crime and Disorder Act 1998, hostility towards one member of a racial group may suffice, provided it forms part of the motivation. The victim need not be a member of that racial group. Racial motivation may be inferred from the language and circumstances.

Selena Taylor appealed by way of case stated from her conviction by District Judge Black at Tower Bridge Magistrates’ Court for racially aggravated use of threatening, abusive or insulting words or behaviour. The words were shouted outside a dwelling in the presence of police officers and an ambulance crew, while neighbours appeared to be alerted. The District Judge found that people were near enough to hear the language and that anyone hearing it would likely suffer distress, but did not identify expressly which form of racial aggravation was established.

The Divisional Court considered whether the section 5 offence required proof that a person actually heard the words and whether the facts supported racial aggravation under section 28(1)(b).

1. Appeal dismissed. The District Judge’s findings were sufficient to support the conviction, and no order was made as to costs.
2. Section 5(1) of the Public Order Act 1986 requires evidence that someone was able to hear or see the defendant’s conduct at the relevant time. It does not require evidence that the person actually heard or saw it. The prosecution need not call that person if the surrounding evidence permits the court to infer, to the criminal standard, that the conduct was audible or visible to someone present. A merely possible observer is insufficient.
3. The court adopted the approach of Collins J in Holloway v DPP and rejected the narrower approach attributed to Silber J. The evidence that the ambulance crew were present, that Taylor was shouting while seeking the neighbours’ attention, and that lights came on in nearby houses supported the finding that several people were able to hear the words.
4. The District Judge’s reference to anybody hearing the language being likely to suffer distress included PC Duly, who undoubtedly heard it. In any event, the case did not depend solely on him. Whether a person was likely to suffer harassment, alarm or distress was a question of fact for the trial judge.
5. Section 28(1)(a) of the Crime and Disorder Act 1998 could not support the conviction because the persons likely to suffer distress were not shown to be the persons towards whom racial hostility was directed. The conviction was instead sustainable under section 28(1)(b), which concerns motivation.
6. Under section 28(1)(b), hostility towards one member of a racial group may qualify, even where the person hearing the abuse is not of that racial group. Section 6(c) of the Interpretation Act 1978 supports reading plural words as including the singular. The racial motivation could be inferred from the explicitly racist language, which was not used in jest, notwithstanding the appellant’s intoxication and anger about a suspected sexual relationship.

• High Court (Administrative Court): appeal by way of case stated dismissed.
• Tower Bridge Magistrates’ Court: District Judge Black convicted the appellant on 30 March 2005 and imposed a £100 fine.