A licence to swear – fact or fiction?

Andrew Steel looks behind the headlines and explains what the recent judgement on swearing at police officers actually means.

Don’t believe all that you read in the papers… How often do we hear that expression these days? But how fair is it? To answer that question one must consider the way certain matters are reported particularly, it seems, where police powers are concerned. A recent example follows a Queens Bench decision in the case of Harvey v Director of Public Prosecutions (2011).

This matter was heard by Mr Justice Bean on November 17, 2011. What followed were numerous press headlines which ranged from: ‘Swearing at the police is not a crime…’ (Daily Telegraph 21.11.11) to ‘Licence to swear: Profanity is so common that it can’t be offensive…’ (Daily Mail 21.11.11).

Are these headlines correct and more importantly, what message does it send and how does it affect police officers having to deal with members of the public who might read such headlines?
It should be said from the outset that the full judgment has not yet been approved. However, the facts can be gleaned from the full case summary which is available.

Section 5 of the Public Order Act (1986) makes it an offence for a person to use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or display any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress. In addition, an officer may arrest where a warning has been given to the person regarding the offensive conduct and the person continues with the offensive conduct immediately or shortly after the warning.

Harvey (‘H’) had been convicted of a section 5 offence by magistrates and had appealed. Police officers had stopped a group of people, which included H, whom they suspected were in possession of cannabis. H objected to being searched, saying “f**k this. I haven’t been smoking anything”. An officer warned H about his language and advised him that he would arrest him for a section 5 offence if he continued. No drugs were found on H, to which H said “I told you you wouldn’t find f**k all”. H was again warned about his swearing. An officer carried out a name search and asked H what his middle name was. H replied “I have already f**king told you”. H was then arrested. The magistrates held that H was in a public area and people should not be subjected to frightening, abusive and insulting words and that it was the tone of the words as well as the words themselves that caused harassment, alarm and distress.

H was successful in his appeal. The reason for his success was not, as it has been reported, because swearing is now not offensive, but rather because of significant evidential flaws in the prosecution case. In testimony given at trial, none of the officers gave evidence that they were caused harassment, alarm or distress as a result of H’s language. There was also no evidence from anyone else that they were caused harassment, alarm or distress. In the absence of any evidence, Mr Justice Bean found that the conviction must be quashed as the magistrates were not entitled to make the findings they did in the first place.

The issue picked up by the mainstream press relates largely to the judgment in DPP v Orum (1989) 1 WLR 88 which was referred to in H’s appeal. In Orum, it was made clear that a police officer is capable of being a person who can be caused harassment, alarm or distress, but that it was expected that officers should display a degree of fortitude and that magistrates may take into account the familiarity that officers will unfortunately have with certain words given the nature of the job. Accordingly, the question of an officer being the person who has been caused harassment, alarm or distress which leads to an arrest is entirely fact specific.

This, in my view, is entirely different from the situation in H where the officers simply did not give an