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DPP v Orum
QUEEN'S BENCH DIVISION
[1988] 3 All ER 449, [1989] 1 WLR 88, 153 JP 85, [1988] Crim LR 848
HEARING-DATES: 18 JULY 1988
18 July 1988

CATCHWORDS:
Public order -- Offensive conduct conducive to breaches of peace -- Threatening, abusive or insulting words or behaviour -- Person likely to be caused harassment, alarm or distress -- Police officer -- Whether police officer capable of being caused harassment, alarm or distress by threatening, abusive or insulting words or behaviour -- Public Order Act 1986, s 5(1).

HEADNOTE:
A police officer is capable of being 'a person likely to be caused harassment, alarm or distress' by 'threatening, abusive or insulting words or behaviour', for the purposes of s 5(1)a of the Public Order Act 1986. However, if he is not likely to be caused harassment, alarm or distress by the words or behaviour used it is not likely that he will be able to arrest the person using the threatening, abusive or insulting words or behaviour under s 5(4) for offensive conduct, since the officer, if he is the only person present, will not be in a position to suspect that an offence under s 5(1) has been committed.

NOTES:
For threatening conduct, see 11 Halsbury's Laws (4th edn) para 850, and for cases on the subject, see 15 Digest (Reissue) 908--911, 7797--7810.
CASES-REF-TO:
Marsh v Arscott (1982) 75 Cr App R 211, DC.
R v Howell [1981] 3 All ER 383, [1982] QB 416, [1981] 3 WLR 501, CA.
CASES-CITED:
Read v Jones (1983) 77 Cr App R 246, DC.

INTRODUCTION:
Case stated
The Director of Public Prosecutions appealed by way of a case stated by the justices of the County of Avon in respect of their adjudication as a magistrates' court sitting at Bristol on 6 January 1988 whereby they dismissed two informations preferred against the respondent, Anthony Orum, of using threatening, abusive or insulting behaviour or disorderly behaviour, contrary to s 5(1) of the Public Order Act 1986, and assaulting a police constable in the execution of his duty, contrary to s 51(1) of the Police Act 1964. The facts are set out in the judgment of Glidewell LJ.

COUNSEL:
Graham Jones for the Director of Public Prosecutions.
Malcolm Cotterill for the respondent.

PANEL: CULLOUGH J
JUDGMENTBY-1: GLIDEWELL LJ
JUDGMENT-1:
GLIDEWELL LJ.

This is a prosecutor's appeal by way of case stated by justices for the County of Avon, sitting as a magistrates' court at Bristol, on 6 January 1988. On that day, the respondent, Mr Anthony Orum, appeared before the magistrates on two charges, namely, that on 9 November 1987, in the city of Bristol, he had used threatening, abusive or insulting words or behaviour or committed disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, contrary to s 5(1)(a) of the Public Order Act 1986, and that on the same date, he had assaulted Douglas Campbell Crossan, a constable of the Avon and Somerset Constabulary in the execution of his duty, contrary to s 51(1) of the Police Act 1964. The respondent pleaded not guilty.

The magistrates heard the two charges together and found the following facts. At 1.15 a m on 9 November 1987 the respondent was standing by a garden wall in a road in Victoria Park, Bristol in the company of his girlfriend. The road has terraced houses on both sides of it. The respondent and his girlfriend were eight to ten feet away from the nearest house. They were engaged in an argument and the respondent was using abusive language. He had consumed a quantity of alcohol during the course of the evening. Pcs Hickman and Crossan arrived at the scene. Pc Hickman approached the respondent and said: 'Quiet, you are disturbing the neighbours.' The respondent replied: 'You fuck off. This is a domestic and you can't do nothing.' Pc Hickman said: 'Quiet, you are causing a breach of the peace. Quiet down, go home and sleep it off.' The respondent replied: 'You can't fucking arrest me. I know my rights. If you don't go away I am going to hit you.' Pc Hickman then arrested the respondent for causing a breach of the peace and cautioned him.

The only persons present in the street were the respondent, his girlfriend and the two police constables. The respondent was placed in the rear of a police vehicle. As Pc Crossan entered the vehicle, the respondent kicked him in the stomach and hit him on the head and body. The respondent was then finally subdued and handcuffed.

The magistrates expressed their opinion in the following terms.

'As the only people present in the street were the respondent, his girlfriend and the two constables and no other evidence having been adduced by the prosecution that harassment, alarm or distress was likely to be caused within the hearing or sight of any person, we were advised by our clerk that it was not open to us to infer that harassment, alarm or distress was likely to be caused within the hearing or sight of any person. We were advised therefore that no offence had been committed contrary to section 5(1)(a) of the Public Order Act 1986. Having decided that no offence under section 5(1)(a) of the Public Order Act 1986 had been committed Constable Hickman had no power to arrest the respondent. As the arrest was unlawful Constable Hickman was no longer acting in the execution of his duty when he was assaulted by the respondent. Accordingly, we dismissed both charges.'

The magistrates then posed four questions in the case stated to which I shall refer later because I propose to deal first with a question in somewhat different terms to that which they posed. The main question on which this court's views are sought is one on which we are told there is as yet no authority. It arises out of the proper interpretation of s 5 of the Public Order Act 1986. The relevant parts of sub-s (1) are set out in the charge which I have already read but, for the sake of completeness, I shall read s 5, so far as material:

'(1) A person is guilty of an offence if he--(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour . . . within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
(2) An offence under this section may be committed in a public or a private place . . .
(3) It is a defence for the accused to prove--(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or (b) that he was inside a dwelling . . ., or (c) that his conduct was reasonable.
(4) A constable may arrest a person without warrant if--(a) he engages in offensive conduct which the constable warns him to stop, and (b) he engages in further offensive conduct immediately or shortly after the warning.
(5) In subsection (4) ''offensive conduct'' means conduct the constable reasonably suspects to constitute an offence under this section, and the conduct mentioned in paragraph (a) and the further conduct need not be of the same nature . . .'
Subsection (6) sets the penalty.
The power of arrest to which sub-ss (4) and (5) relate is in fairly common form. The effect of the two subsections is that if the constable reasonably suspects that the conduct of a particular person constitutes an offence against sub-s (1) then provided that the constable warns him to stop and the person then engages in further offensive conduct, the constable is entitled to arrest him.

The main question which we have to answer is: can a police officer be a person who is likely to be caused harassment, alarm or distress by the threatening, abusive or insulting words or behaviour? It is apparent, as counsel who appears for the respondent sensibly concedes, that in the first part of the passage in which they set out their opinion, the magistrates firstly had taken the view that they can discount any question of harassment, alarm or distress to people living in and presumably mostly asleep in the nearby dwelling houses, because there is no evidence that any such person was likely to be caused harassment etc. Secondly, they appear to have totally discounted the effect of the respondent's conduct on his girlfriend. What they concerned themselves with, and what we are asked to concern ourselves with, is the impact of that conduct on either or both of the two police constables.

The magistrates seem to have been advised by their clerk that they could not properly, presumably as a matter of law, conclude that either of the constables was likely to be caused harassment, alarm or distress by the words or behaviour of the respondent. Counsel for the respondent argues that that is a proper conclusion provided that s 5 of the 1986 Act is to be interpreted on the same lines as its predecessor, namely s 5 of the Public Order Act 1936. I say 'on the same lines': what I mean is that it is conduct likely to involve a breach of the peace.

In the decision of this court in Marsh v Arscott (1982) 75 Cr App R 211 the defendant was charged under s 5 of the Public Order Act 1936, the relevant words of which provided:
'Any person who in any public place . . . (a) uses threatening, abusive or insulting words or behaviour . . . with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence.'

The defendant was slumped over the bonnet of a car late on a Saturday night in the car park of a shop. The police officers who found him asked the defendant questions and received only abusive replies. The question was whether the defendant's language and behaviour was such that a breach of the peace was likely to be occasioned notwithstanding that the only witnesses to the behaviour were the police officers. McCullough J, giving the first judgment, said (at 216):
'In the circumstances here, assuming the defendant to have been acting unlawfully in using threatening words and behaviour, no breach of the peace was likely to have been occasioned. No other person was likely to have broken the peace, and all that the police were likely to do was arrest him, as they did. On that basis too an acquittal would, in my judgment, have been inevitable.'

If I may say so, respectfully, that is common sense as well as good law. However, with respect to counsel for the respondent, his argument is not. In my view, the very different wording of s 5 of the 1986 Act, which makes no reference at all in sub-s (1) to a breach of the peace, does not allow the importation of that concept or that phrase in its interpretation.

I find nothing in the context of the 1986 Act to persuade me that a police officer may not be a person who is caused harassment, alarm or distress by the various kinds of words and conduct to which s 5(1) applies. I would therefore answer the question in the affirmative, that a police officer can be a person who is likely to be caused harassment and so on. However, that is not to say that the opposite is necessarily the case, namely it is not to say that every police officer in this situation is to be assumed to be a person who is caused harassment. Very frequently, words and behaviour with which police officers will be wearily familiar will have little emotional impact on them save that of boredom. It may well be that, in appropriate circumstances, magistrates will decide (indeed, they might decide in the present case) as a question of fact that the words and behaviour were not likely to cause harassment, alarm or distress to either of the police officers. That is a question of fact for the magistrates to decide having regard to all the circumstances: the time, the place, the nature of the words used, who the police officers are and so on.

It seems to me that the magistrates were advised by their clerk that they could not find that police officers could be caused harassment and so on by such words and behaviour as a matter of law. It may be that the clerk was thinking of Marsh v Arscott and he had in his mind the argument which counsel for the respondent advanced to us. If he did, I have already indicated that I think he was wrong so to do.

Counsel for the prosecution poses for our consideration a second question: if in fact a police officer is not likely to be caused harassment etc does he then have any power to arrest under s 5(4)? Theoretically, the answer to that question may be Yes, but in practice, in my view, it must almost invariably be No. The reason is this. If an officer is not caused harassment alarm or distress, it is difficult to see how he can reasonably suspect, if he is the only person present, that an offence against s 5(1) has been committed since such causation is a necessary element in the offence. If he does not reasonably suspect that such an offence has been committed, then he has no power of arrest under s 5(4).

I would hold that, if the magistrates had been right in their conclusion on the first question, they would also have been right in their conclusion on the second question, although these are not questions framed in precisely the same way as the magistrates framed them.

We then come to a somewhat odd facet of this case. As I have already indicated, the magistrates found as a fact that the respondent was arrested for causing a breach of the peace. That means that the constable was exercising his common law power of arrest for a breach of the peace which has been specifically preserved by s 25(6) of the Police and Criminal Evidence Act 1984. He was not purporting to exercise his power of arrest under s 5(4) of the 1986 Act. Quite why the magistrates, having found that, went on to consider section 5(4), I am not sure.

In R v Howell [1981] 3 All ER 383 at 389, [1982] QB 416 at 427, a decision of the Criminal Division of the Court of Appeal, Watkins LJ, giving the judgment of the court, said:
'We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.'

Clearly, a defendant who, when told to quieten down, to go home and sleep it off, says, 'You can't fucking arrest me. I know my rights. If you don't go away I am going to hit you,' does commit a breach of the peace within that definition. It follows, and counsel for the respondent found himself unable to argue to the contrary, that on that basis the arrest was entirely proper. It follows from that that the assault on the officer, which undoubtedly took place, was an assault when he was acting in the execution of his duty.

I return to the questions which the magistrates posed. The first is: 'Were we correct in holding that abuse and threats made to a police constable could not amount to an offence under s 5 of the Public Order Act 1986?' For the reasons I have already indicated, the answer to that question is No. The second question is: 'On the evidence before the court was our decision perverse in that no reasonable bench of justices properly directed could arrive at that decision?' It is not necessary to answer that question. The third question is: 'Having concluded that no offence was committed under s 5 of the Public Order Act 1986, were we correct in finding that the constable was not acting in the execution of his duty?' The answer to that question is that if the hypothesis is correct, then the magistrates would have been correct in their conclusion. The fourth question is: 'In order to ascertain if the police constable had been acting in the execution of his duty, should we have applied the test provided in the Public Order Act 1986, s 5(4)(a) and 5(4)(b) and the definition of ''offensive conduct'' contained in s 5(5) of the said Act . . .?' The answer to that question is Yes in relation to that section, but No in relation to the facts of this matter. As I have already said, the arrest was for a breach of the peace.

That answers the questions which we have been asked to answer. What steps should we take in this particular matter? It seems to me that the proper course on the charge of assault on the police constable in the execution of his duty is to remit the matter to the magistrates with a direction that they should convict and then impose such sentence as they think appropriate. Having answered the question which the prosecution want answered in relation to s 5(1) of the 1986 Act, I would think it right to set aside the magistrates' acquittal of the respondent, but to make no further order. I find it unnecessary to send the matter back to them for them to find, as a matter of fact, whether the police officers were caused harassment and so on.

I should say, if McCullough J agrees, that I propose that course because counsel for the appellant makes it clear that the prosecution were interested in having the questions answered in principle rather than ensuring that the respondent, after this remove of time, was successfully prosecuted to conviction. Accordingly, those are the orders I propose.

JUDGMENTBY-2: McCULLOUGH J
JUDGMENT-2:
McCULLOUGH J. I agree both with the proposed orders and with the judgment of Glidewell LJ and would only add a few words since I was party to the decision in Marsh v Arscott (1982) 75 Cr App R 211. In enacting s 5 of the Public Order Act 1986 in place of s 5 of the Public Order Act 1936, Parliament advisedly deleted the requirement that a breach of the peace was either intended by the defendant or was likely to result from his conduct. In its place was put the requirement that someone within sight or sound of the defendant at the material time would be likely to be caused harassment, alarm or distress by his conduct. Thus, what matters now is not the likely physical reaction to the conduct complained of, but the likely mental reaction to it. It is improbable in the extreme that any police officer would ever be provoked by threatening, abusive or insulting words or behaviour to cause a breach of the peace, but it is by no means impossible that such an officer may not feel harassed, alarmed or distressed as a result of such words or behaviour. This distinguishes the present case from Marsh v Arscott.

DISPOSITION:
Appeal allowed.
SOLICITORS:
Crown Prosecution Service; Bristol Bobbetts, Bristol (for the respondent).