Director of Public Prosecutions (DPP) v Smith

For an offence under section 5 of the Public Order Act 1986, the prosecution need not prove an intention to cause harassment, alarm or distress. It must prove the mental element in section 6(4): an intention that the words or behaviour should be threatening or abusive, or awareness that they may be so. Under section 6(5), intoxication does not prevent the required awareness being established. Offensive language is not necessarily distressing. Whether words were likely to cause harassment, alarm or distress remains a question of fact for the magistrates, assessed in all the circumstances, including who heard them and the nature and setting of the words.

The respondent was acquitted by the City of London Magistrates’ Court of offences under section 5 of the Public Order Act 1986 and section 31 of the Crime and Disorder Act 1998. The prosecution appealed by way of case stated.

The magistrates had found that the respondent was intoxicated, had used racially abusive language in a public place, and lacked an intention to cause harm or distress. The certified question was whether that reasoning could support acquittal when section 5 did not require proof of such an intention. The further issue was whether the evidence established, or could establish on rehearing, that the words were likely to cause harassment, alarm or distress.

1. Appeal allowed. The certified question was answered in the negative. It was not reasonably open to the magistrates to acquit on the basis that the respondent lacked an intention to cause harassment, alarm or distress. Section 5 of the Public Order Act 1986 contains no such requirement.
2. The applicable mental element was that in section 6(4): the prosecution had to prove either that the respondent intended the words to be threatening or abusive, or that he was aware that they might be threatening or abusive. Section 6(5) required awareness impaired by intoxication to be assessed as if the defendant were sober. The respondent’s intoxication was therefore irrelevant to guilt, though potentially relevant to sentence. His apology was also irrelevant to guilt.
3. Offensiveness and distress are distinct, although overlapping, concepts. Evidence that the language was offensive did not itself establish that it caused, or was likely to cause, alarm or distress. The question remained one of fact for the magistrates, taking account of the time, place, words used, the persons present and whether the words were overheard.
4. The case fell somewhere between Harvey v DPP [2011] EWHC 3992 and Taylor v DPP [2006] EWHC 1202 (Admin). It was open to a rehearing court, particularly if satisfied that members of the public had heard the words, to find that they were caused, or were likely to have been caused, alarm or distress.
5. The decision of the justices was quashed. The case was remitted to the City of London Magistrates’ Court for rehearing by a differently constituted court. No order was made as to costs. The section 31 charge necessarily failed if the section 5 charge failed.

• City of London Magistrates’ Court: acquitted the respondent of offences under sections 5 and 31 of the relevant statutes.
• High Court (Administrative Court): allowed the appeal by way of case stated, quashed the acquittal and remitted the case for rehearing by a differently constituted court.