Harvey v Director of Public Prosecutions

Section 5 of the Public Order Act 1986 does not criminalise swearing in public by itself. The prosecution must prove threatening, abusive or insulting words or behaviour and that a person within hearing was caused, or was likely to be caused, harassment, alarm or distress.

Whether expletives are abusive is fact-sensitive. However, where witnesses give evidence about the incident but say nothing about experiencing harassment, alarm or distress, the court should not infer that consequence from silence, particularly where the witnesses are police officers. Inferences concerning bystanders also require evidence placing them within hearing and supporting the likelihood of harassment, alarm or distress.

The claimant appealed by case stated against his conviction by magistrates for using threatening, abusive or insulting words or behaviour contrary to section 5 of the Public Order Act 1986. During a police search outside a block of flats, he swore three times. The officers gave no evidence that they had been harassed, alarmed or distressed, and the case stated contained no specific evidence concerning bystanders or neighbours.

The central issues were whether the words were capable of being abusive or insulting, and whether the statutory requirement concerning harassment, alarm or distress could be established without direct evidence or specific facts supporting an inference.

1. The appeal was allowed and the conviction was quashed.
2. For the purposes of section 5(1)(a) of the Public Order Act 1986, the prosecution had to establish both that threatening, abusive or insulting words were used within another person’s hearing and that the person was caused, or was likely to be caused, harassment, alarm or distress.
3. The three expletive exchanges were capable of amounting to abusive or insulting words or behaviour. The character of such language depended on context, including the time, place, persons involved, manner and surrounding circumstances. The approach in DPP v Orum [1989] 88 Cr App Rep 261 and Southard v DPP [2006] EWHC 3449 supported that fact-sensitive assessment.
4. There was no evidential basis for finding that either police officer had been caused, or was likely to have been caused, harassment, alarm or distress. Where witnesses give evidence about an incident but remain silent on that issue, the court should not draw the inference for itself. The fact that police officers frequently hear expletives was a relevant contextual consideration.
5. An inference concerning bystanders is permissible in principle, but the evidence must support both their being within hearing and the likelihood of harassment, alarm or distress. The presence of people near a block of flats was insufficient. The evidence did not establish that the young people or any neighbours were affected or even within earshot. The contrast with the materially more offensive racist language in Taylor v DPP [2006] EWHC 1202 (Admin) was material.

• Magistrates’ court: convicted the claimant under section 5 of the Public Order Act 1986 and fined him £50; acquitted him of assaulting a police officer.
• High Court (Administrative Court): allowed the appeal by case stated and quashed the conviction.