The Director of Public Prosecutions v Distill

For the purposes of the exception in section 5(2) of the Public Order Act 1986, a “dwelling” ordinarily means the structure or part of a structure occupied as a person’s home or living accommodation. A domestic front or rear garden will generally fall outside that definition, even though it is private and forms part of the property. The question remains fact-sensitive. The statutory context is decisive, and definitions used in other legislation do not determine the meaning of “inside a dwelling” under the 1986 Act.

The Director of Public Prosecutions appealed by way of case stated against the dismissal of proceedings by the Wiltshire Magistrates’ Court. Jane Distill was alleged to have used racially abusive words from the back garden of one suburban property, which were heard by neighbours in the adjoining back garden. The magistrates ruled that both gardens formed part of dwellings and concluded that the section 5(2) exception applied, so that there was no case to answer.

The central issue was whether the alleged words had been used by a person “inside a dwelling” within section 5(2) of the Public Order Act 1986.

1. Appeal allowed. The answers to both questions in the case stated were “No”. The magistrates were wrong to rule that the alleged incident occurred inside a dwelling and wrong to conclude that the respondent had no case to answer.
2. The exception in section 5(2) of the Public Order Act 1986 is narrowly drawn. It applies only where the words or behaviour were used by a person inside a dwelling and the other person was also inside that or another dwelling. The fact that conduct occurred in a private place does not itself engage the exception.
3. Under section 8, a dwelling must first be a structure or part of a structure. It must also be occupied as a person’s home or other living accommodation. The structure is what contains the accommodation in which the person lives.
4. A domestic garden will not ordinarily be regarded as a structure, or part of a structure, occupied as a person’s home or living accommodation. A garden contained within a residential building may qualify on the facts. A shed, patio, greenhouse, pool, fence or other structure within or enclosing an ordinary garden does not ordinarily make the garden itself a dwelling.
5. R. v Edwards and Roberts concerned the different statutory question whether a private garden was private premises rather than a public place under the Public Order Act 1936. It did not determine the meaning of “dwelling” under the 1986 Act. Definitions in the Housing Act 1985 and Housing Act 1995 likewise belonged to different statutory regimes.
6. On the undisputed facts, neither adjoining back garden came within the section 8 definition. The section 5(2) exception therefore did not apply.

• Wiltshire Magistrates’ Court: ruled that the gardens were part of the dwellings and found that there was no case to answer.
• High Court (Administrative Court): allowed the DPP’s appeal by way of case stated. The magistrates’ answers to both questions were “No”.