Crime Solicitors

***Commentary on HARVEY (H) v DIRECTOR OF PUBLIC PROSECUTIONS (2011)**

There is an offence commonly referred to as a “S5 Public Order” as it relates to the section number of the 1986 Act from which it is derived.

The offence is committed when a person uses threatening abusive or insulting words or behaviour. The normal protocol for a police officer when he hears such words, would be to warn the person regarding their behaviour and if repeated, this often leads to an arrest.

***Look at the set of facts below**

Two police officers stop a group of people, including H, whom they suspect was in possession of cannabis. A search of them is conducted in the middle of a block of flats. H objects to the search, saying, "fuck this, I haven't been smoking anything." The officer warns H about his language stating that he would charge him with a s.5 offence if he continued. No drugs were found on H, to which H said, "I told you you wouldn't find fuck all." H was again warned about his swearing. The officer carried out a name search and asked H for his middle name. H replied " I have already fucking told you." The officer arrested H.

There was no evidence that he was caused harassment, alarm or distress as a result of H's language, nor was there evidence that anyone else was. H was convicted. The magistrates' court held that H was in a public area in the middle of a block of flats and people should not be subjected to frightening, abusive and insulting words, and that it was the words as well as the tone used which caused harassment, alarm and distress.

***Before reading the ruling below and the reasons for it, ask yourself whether you believe the magistrates were right or not?**

***The Ruling **

The questions posed for the High Court were whether: (i) the magistrates' court was entitled to find that H's language was threatening, abusive, insulting or disorderly; (ii) the officers were likely to be caused harassment, alarm or distress as a result in the absence of express evidence that such a result was likely; (iii) the innocent bystanders who witnessed the incident were likely to be caused harassment, alarm or distress in the absence of express evidence that such a result was likely.

HELD: (1) The magistrates' court was not entitled to conclude that H's language was threatening, abusive or insulting, or that it had caused or was likely to cause the police officers harassment, alarm or distress where there was no evidence on the matter. Where the witnesses had given evidence of H's language but had neither said nor been asked anything about whether they were likely to be caused or had been caused harassment, alarm or distress, there was no basis on which to conclude that they had. That was particularly the case with the police officers as such language was frequently heard due to the nature of their job, *bis*"DPP v Orum (1989) 1 WLR 88 QBD*bie* applied. There was no doubt that such language was capable of causing harassment, alarm or distress, but whether it did or not was fact-dependent, O rum and *bis*Southard v DPP (2006) EWHC 3449 (Admin), (2007) ACD 53*bie* applied. Where, as in the instant case, the witnesses had remained silent on the issue, the magistrates' court had been wrong to draw inferences that they had been caused harassment, alarm or distress.

It should be remembered before all Daily Mail readers jump up and down, that as a criminal defence solicitor the offence is intact and if anyone is stupid or foolish enough to repeatedly swear at anyone in public, including an officer they should be arrested and prosecuted. However if a prosecution is to be successful from a technical point then there needs to be evidence of harassment alarm or distress, there was none in this case. Notwithstanding this, the authorities also indicate there needs to be evidence that there was someone able to hear the words spoken, even if they weren’t called to give evidence.

The case has raised concerns from the police and lauded from other parts. Some rank and file police have raised concerns about the attitude the court has taken. One officer commented in the Guardian

“an appeal court judge has ruled that police officers are immune to distress caused by swearing, and has exonerated Denzel Harvey for doing so repeatedly while being searched for drugs.”

The officer went on;

“I remember being briefed by an inspector in no uncertain terms that if someone was found urinating or swearing in public, I should give evidence of the dear little old lady who passed by them in disgust. If our local magistrates noticed that [the local town] had a strangely high population of dear little old ladies, they never mentioned it. An indication, perhaps, that police officers have been over-using and abusing "s.5 POA". But s.5 does not exist to deal with those who include the F-word in their regular dialogue, but for those who cause genuine alarm and fear on Britain's streets: the kind of growling drunkard you would cross the road to avoid.”

The issue and use of S5 offences often goes to the heart of policing. Disgruntled officers can and do use this as a means of exerting their authority in situation where it may not be required. A common situation is where people are searched on the pretext for drugs as in Mr Harvey’s case above. People are often stopped not once or twice but repeatedly. This often raises frustrations within the people that are stopped

Officers within the Met leave Hendon well trained in “Racial Diversity”, the new watch word ever since the Macpherson Inquiry which concluded that the Met were “institutionally racist”. They receive training on how to cope with difficult and highly volatile situations. It is a combination of life on the beat and the lack of support from within the community that allows some to use the S5 as a stick. Should officers be given the same respect they were in the 1950’s. – yes I believe so. However the officers are different and our society has changed and therefore whilst it might be nice to reflect on the past we have to move and look forward.

I do not expect to be sworn at as part of my job, however it sometimes occurs. The court took the view, that as officers they are subjected to more abuse as part of their job and should have evidenced this. The ruling tacitly accepts that being sworn at is almost part of the role, which should be unacceptable.

However there are concerns as to why there is still a large gap between the police and communities within which they serve. In the 1970’s and 80’s were the use of the Stop and Search powers whilst such powers are still in existence, they are much more closely monitored but the case will do nothing to resolve the deeper differences that this case touches upon.

In the end officers, will receive further retraining as a direct result of this authority, at taxpayers expense, to ensure that next time anyone tells them to “--ck off !” they evidence this, as well as the little old lady walking by.
By Rubin Italia