Southard v Director of Public Prosecutions

For an offence under section 5 of the Public Order Act 1986, harassment is distinct from alarm and distress. The prosecution need not establish emotional disturbance or upset, but the likely harassment must be real rather than trivial. Police officers may be persons likely to be caused harassment, although their professional stoicism and experience are relevant factual circumstances. Whether words such as “fuck off” or “fuck you” are abusive depends on context. Deliberate use of such words towards an officer, or awareness that they may be abusive, can satisfy the mental element under section 6(4). A borderline case may nevertheless be proved to the criminal standard where the tribunal is sure that the statutory ingredients are established.

Andrew Michael Southard was convicted by justices of using threatening, abusive or insulting words or behaviour contrary to section 5 of the Public Order Act 1986. The Crown Court dismissed his appeal, finding that his swearing at a police officer was abusive and was likely to cause harassment, although not alarm or distress. The sentence was varied to a six-month conditional discharge.

On a further appeal by way of case stated, the High Court considered whether the Crown Court’s conclusion was perverse. The principal issues were whether a police officer could be a relevant target, whether the conduct was abusive, whether harassment required real emotional upset, whether the mental element was proved, and whether the provision was available where police officers were the only targets.

The appeal was dismissed. Fulford J gave the judgment, with Latham LJ agreeing.

1. Abusive conduct. Words such as “fuck you” or “fuck off” are potentially abusive. Their frequent use does not require a court to treat them as no longer abusive. The final conclusion remains fact-dependent and turns on the context and circumstances in which the words were used.
2. Harassment. The requirement that conduct be likely to cause harassment does not import the same standard as distress. Distress involves emotional disturbance or upset, whereas a person may be seriously harassed without experiencing such disturbance. Harassment need not be grave, but it must be real and not merely trivial.
3. Police officers as targets. A police officer may be a person likely to be caused harassment under section 5. Officers are expected to be stoical, but that is only one factual consideration. On the evidence, the appellant’s agitated and disruptive conduct, including interference with the search of his brother and repeated abusive language, provided a sustainable basis for finding that real harassment was likely.
4. Mental element and scope. The appellant deliberately directed the words at the officer. The court was entitled to find that he intended to abuse the officer or was aware that his words might have that effect under section 6(4). Section 5 is available even where police officers are the only likely audience or target, including as a lesser alternative to more serious offences.
5. The Crown Court’s view that the case was close to the borderline did not undermine its conclusion that it was sure the offence had been proved. Recognition that conduct was not grave criminality was compatible with a valid conviction.

1. High Court (Administrative Court): The further appeal by way of case stated was dismissed.
2. Crown Court at Portsmouth: On 20 January 2006, the appellant’s appeal from conviction was dismissed; the sentence was varied to a six-month conditional discharge.
3. Justices of the local justice area of South and South East Hampshire: On 16 November 2005, the appellant was convicted of the section 5 offence.