Holloway v Director of Public Prosecutions

MR JUSTICE SILBER:

Alan Holloway appeals by way of case stated against the decision of Deputy District Judge Jones sitting at Chester Magistrates' Court on 30th June 2004, convicting the appellant of an offence of disorderly conduct contrary to section 5 of the Public Order Act 1986.

This case, with its very strange facts, raises an important point on the necessary ingredients of section 5, and in particular whether it is necessary for the conduct in question to be actually witnessed by a third party before a defendant can be convicted and not merely that the conduct could have been seen by a third party.

The facts found by the district judge were that on 7th May 2003 the appellant was in a countryside location using his video recorder and deliberately filming a group of school boys and school girls, who were engaging in sports activities on the nearby school playing field. While the appellant was doing this, he stood naked for some time in view of the video camera whilst the children were in the background some distance away.

It is significant that the deputy district judge found that no one saw the appellant in his naked state, although anyone could have seen him. The district judge said that the appellant could clearly have seen the children whilst in this state and that his behaviour was "insulting" within the meaning of section 5. The district judge also found, first, that anyone seeing the appellant naked in a public place, would be likely to be caused harassment, alarm or distress, and, second, that the appellant must have been aware of the likely effect of his naked state on others in a public place.

The deputy district judge found that nobody actually saw the appellant undressed or dressed in the woods with his camera on his tripod looking in the direction of the children and focusing his equipment on the children.

Another finding of the deputy district judge was that when the appellant was arrested, his JVC digital video camera and his tripod were taken from him while he was in the woods close to the school playing fields.

The deputy district judge also found that a police officer, who attended the scene on the day in question, had a clear and unobstructed view of the school and playing fields through the view-finder of the video camera. When that police officer rewound the appellant's tape, he saw, in the findings of the deputy district judge, the image of the appellant in a naked state, looking into the field, with children in the background playing in their school grounds.

The appellant admitted that he was the person appearing on that video on 7th May 2003 and he accepted that he could be seen on the video in a state of undress.

The deputy district judge also found, first, that the children were not aware of being filmed, and, second, that the video film shot by the appellant had footage of bare legs of secondary school children playing sport.

He also found that there were three occasions on which the appellant was filmed naked, watching the children who were in the background.

Another finding of the deputy district judge was that the appellant had said in evidence that he was testing out his new video camera when he stood naked filming the children, and that the reason why he filmed his naked body was that he needed to film something white, but when he did this, he had seen that no one was looking at him.

The district judge gave his reasons for convicting the appellant by explaining that:

Miss Virginia Hayton, who appears on behalf of the appellant, submits that she accepted that the behaviour of the appellant constituted "insulting behaviour". Indeed, the question which is raised for the High Court is, "Whether a person who is not seen but could have been seen by anybody has committed an offence under section 5(1) Public Order Act 1986?" That provision, insofar as is relevant, provides that:

The submission on behalf of the appellant is that section 5 requires the insulting behaviour to be actually witnessed by somebody. In support of that submission Miss Hayton focuses on the words in section 5(1), "within the... sight of a person." She submits that those words mean that some person must have actually seen the behaviour before anybody can be convicted of this offence.

Mr Meirion Lewis-Jones, on behalf of the respondent, says that for the appellant to be convicted of a section 5 offence it is not necessary for anybody to see the behaviour, and there is no need for the prosecution to produce anybody who has seen the offending behaviour, provided that the person whose offending behaviour is under question could have been seen by somebody.

It is common ground between counsel that there is no relevant case law on this issue, probably because the facts are so unusual. In my view it is very significant that section 5 requires the insulting words or behaviour to be "within the... sight of a person". These words mean that some person must have actually seen the abusive or insulting words or behaviour. It is not enough that somebody merely might have seen or could possibly have seen that behaviour.

There are two additional reasons which lead me to that conclusion. The first of which is to contrast the wording in section 5 of the 1986 Act (with which this appeal is concerned), with the wording in section 3 of the same Act which provides, insofar as is material, that:

The last few words in section 3(1) indicate that the prosecution do not need to prove or to adduce evidence from somebody, who is fearing for their own personal safety. All that needs to be done is for the fact-finders to be satisfied that a notional person of reasonable firmness would have reached that conclusion.

It is significant to note the way in which wording in section 3 contrasts with that in section 5. In my view, if Parliament had intended that an offence under section 5 would have been committed if the offensive behaviour could have been seen by somebody (even if not actually seen), then it would have inserted in section 5 a provision to that effect or perhaps wording similar to that used in section 3.

Moreover, section 3(4) of the 1986 Act provides that, "No person of reasonable firmness need actually be, or be likely to be, present at the scene." It is a similar provision to that which the respondents say ought to be implied in section 5.

In my view the fact that the legislature adopts this wording in section 3 shows that a person can be convicted of an offence under that section if a notional person would have seen the conduct complained of, but the legislature does not adopt this wording in section 5, indicating clearly that the Parliamentary intention is that the two provisions should be construed differently and in the way that I have indicated.

A second reason why I reached the conclusion that for a person to be convicted of a section 5(1) offence, they actually have to be seen by somebody, is that the contrary view (namely that they will have committed an offence if they could have been seen by somebody) entails rewriting section 5(1) so that the abusive or insulting words or behaviour would have been likely to have caused harassment, alarm or distress to anybody "who might have or could have heard or seen it." This is not what the statute says and there is no reason why it should be rewritten or construed in this way.

V. Conclusion

Therefore, for my part, the answer to the question of "Whether a person who is not seen but could have been seen by anybody has committed an offence under section 5(1) of the Public Order Act 1986?" is in the negative. Obviously the way in which it can be shown by the prosecution that the offending behaviour was seen by somebody would depend on the normal rules of evidence.

Thus, if my Lord agrees with my view, this appeal should be allowed.

MR JUSTICE COLLINS: I agree with my Lord that this appeal should be allowed. The offence under section 5(1) requires that the threatening, abusive or insulting words or behaviour must be used within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. It is not necessary for it to be established that the person or persons within the hearing or sight were in fact caused harassment, alarm or distress. The conduct has to be such that that is rendered likely.

The question then is what is meant by the words "within the hearing or sight" of a person. I entirely agree that it is not sufficient to establish that someone might have come on the scene and therefore might have seen what the individual who is charged was doing. I assume, in what I say now, that whatever he was doing was threatening, abusive or insulting within the meaning of the section.

What, in my view, is required is that there is at least evidence that there was someone who could see, or could hear, at the material time, what the individual was doing. There is, in my judgment, on the facts of this case, a clear distinction to be drawn between what might have happened if someone had come on the scene and what in fact did happen.

The deputy district judge found, as my Lord has indicated, as a fact, that the children were not aware that they were being filmed and, equally, that no one saw him doing what he was doing when naked. Incidentally, it has not been suggested, and the case was certainly not conducted on the basis, that the offence could be committed by the mere filming. It had to be whilst he was naked. As I say, there was a positive finding that no one saw him naked.

The deputy district judge, in the passage from his judgment which is incorporated into the case, which again my Lord has cited, seems to be suggesting that he was satisfied that the appellant could be seen, as opposed to could have been seen, if anyone had come along. But that cannot be right, having regard to the form of the question which he poses, namely, whether a person who is not seen, but who could have been seen by anybody, has committed an offence.

It may be that what I am saying goes to the evidence which has to be called in order to establish this offence because I do not believe it to be necessary that the prosecution call a person or persons who can say that they did see what was happening. The evidence must be sufficient, so that the court can draw the inference, having regard to the criminal standard, that what he was doing was visible to or audible to people who were in the vicinity at the relevant time. Provided that is established this offence can be made out.

Accordingly, I do not regard it as necessary for the Crown to go so far as to produce positive evidence that he was seen, or that he was heard, to do whatever amounts to the insulting words or behaviour etc within the meaning of section 5.

This case fails because the prosecution were not able to satisfy the magistrate that there was anyone who did see, or was clearly sufficiently within the vicinity to be alarmed by, whatever the defendant was doing when he was filming himself naked. It is not enough that someone might have come along the path, as indeed the lady who saw him filming when he was clothed did, and have seen what he was doing. It seems to me that there is an important distinction.

Miss Hayton, who appeared in the Magistrates' Court, tells me that this distinction was indeed referred to before the deputy district judge, that is to say, the distinction between what could have been seen and what could be seen. The former relates to the possibility that someone might have come along but insufficient evidence to establish that what he was doing was in fact visible to someone who was in the vicinity, and the latter establishes, or is capable of establishing, just that, namely that there was someone who could see what was going on.

Of course, in most cases in which this offence is charged, there will be evidence, usually perhaps from a police officer or from a complainant, that particular conduct has been carried out. The question will be whether that amounts to the offence within the Act. So the circumstances arising in this case, I suspect, will be relatively rare. I do not mean the actual facts, but the charging of this offence where there is no direct evidence that anyone saw what was actually being done, and thus was in the position of someone who was likely to be or who was actually offended by it.

I see no reason, in a proper case, why a charge of this nature should not be established where the evidence makes it clear that the court can properly and safely draw the inference that there were people who could see what was going on or could hear what was going on. The fact that they may not have done, for whatever reason, seems to me to be immaterial. With that perhaps slight gloss on what my Lord has said, I entirely agree that this appeal should be allowed.

It does not need to go back, does it? We just simply allow the appeal which will result in an acquittal. The court register will have to be amended accordingly, but that is all that is needed, is it not?

MR LEWIS-JONES: That is right, my Lord, that must follow from your Lordship's judgment.

MISS HAYTON: Yes. The defendant has the benefit of a representation order. I know that in the lower court when sentenced he was ordered to pay a fine and costs.

MR JUSTICE COLLINS: Those of course will be --

MISS HAYTON: Returned to him.

MR JUSTICE COLLINS: If he has paid them they will be returned, otherwise they will simply be remitted. Do you have any application in relation to costs.

MISS HAYTON: He has not attended today, so there is no expenses for him. Being legally aided it is just the usual order.

MR JUSTICE COLLINS: I am not sure it is. Did I grant a representation order? Yes, I did.

MISS HAYTON: Yes.

MR JUSTICE SILBER: Central funds.

MR JUSTICE COLLINS: Yes, it would be central funds.

MISS HAYTON: I think that is the usual order.

MR JUSTICE SILBER: Yes.

MR JUSTICE COLLINS: That is right.

MR JUSTICE SILBER: Thank you very much.

MR LEWIS-JONES: Thank you, my Lord.