Director of Public Prosecutions, R (on the application of) v Humphrey

MR JUSTICE LEVESON: This is an appeal by way of case stated against a decision of the Mid-Kent Magistrates' Court given on 15th December 2004 at the trial of the respondent on a charge of using threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress which was religiously aggravated in accordance with section 28 of the Crime and Disorder Act 1998, contrary to section 5(1) of the Public Order Act 1986 and section 31(1) 1998 Act.

The Magistrates found that there was no case to answer but did not, at the time of their ruling, provide reasons. At the request of the Director of Public Prosecutions, the Magistrates have stated a case. The short question posed by the case is whether, in the circumstances of this particular case, they were correct to conclude that there was no case to answer. This essentially involves consideration whether, on the prosecution evidence, a reasonable tribunal could have convicted the respondent of the offence.

The factual background based upon the evidence set out in the case can be summarised shortly, although I add that according to Mr Sinclair, who appeared for the respondent, not all the evidence as given in court is in fact set out in the case. On 15th April 2004, police officers were called to Buckland Place, Maidstone at about 10.15 pm. In a neighbouring garden Police Constables Gill and Giles located the respondent, who was unsteady on his feet and apparently upset about his children. The officers spoke to the respondent. Police Constable Gill is a Sikh of Asian appearance and the respondent said to him: "You're fucking Islam" and "Kalima". Constable Gill considered that these words were uttered in an aggressive manner. Constable Giles certainly described his use of the word "Kalima" as oppressive. I interpose by adding that Constable Gill understood "Kalima" to be a reference to a Hindu goddess, whereas the respondent apparently believed it meant "the devil".

Constable Gill perceived that this statement and, in particular, "You're fucking Islam" was made in relation to his ethnic appearance and he felt a bit distressed about the comments. He repeated under cross-examination that he was distressed as he believed the respondent thought that he was a Muslim, when in fact he is a Sikh. Constable Giles said that he thought from Constable Gill's face that "it had disturbed him". That also might refer to the second of the two comments. In any event, the respondent was then arrested for making racial remarks and replied:

Mr Sinclair made a submission that there was no case to answer which, as I have said, the Magistrates accepted. In the case they described the test which they applied in these terms:

The Magistrates then explained that the appellant had based the case solely on the words, "You're fucking Islam" and no others, that the respondent was intoxicated and saying all manner of things, and that nothing that could be considered threatening, abusive or insulting or likely to cause harassment, alarm or distress had been said. Thus, they found that no reasonable tribunal could find that the basic offence contrary to section 5 of the Public Order Act 1986 had been committed and therefore they did not consider the issue of religious aggravation.

In this court, for the Director of Public Prosecutions, Mr Hugh Tomlinson QC, who did not appear before the Magistrates, submits that the reasoning of the Magistrates is extremely difficult to follow. It appears that by accepting the submission that the words used, "could not reasonably be construed as threatening, abusive or insulting", they did no more than hold that no reasonable tribunal could find that the words "You're fucking Islam" in the circumstances of the case were threatening, abusive or insulting. It is abundantly clear that they did not reject the evidence of Constable Gill to the effect that such was said, although I shall return to Mr Sinclair's submission as to the extent to which the Magistrates were prepared to accept the evidence of the police officer.

What Mr Tomlinson argues is that the reasons which the Magistrates gave were not directed to the point whether the words themselves were threatening, abusive or insulting but rather to whether they were likely to cause distress. In particular, none of the reasons relate directly to the essential question whether the words "You're fucking Islam" could reasonably be construed as abusive or insulting when directed towards a police officer from an Asian background. It is worth analysing the reasons that they gave in some detail, although I preface the remark with the fact that Mr Sinclair accepts that some are not phrased as he would have wished and accepts that there are flaws in a number. He argues, however, that when taken in context the meaning of the reasons is clear.

The first two reasons, namely that the evidence was contradictory about whether the remarks were made in an aggressive manner and that the second officer, Constable Giles, did not describe the respondent as an aggressive drunk, do not themselves go to the question of abuse or insult. Whether the respondent was an aggressive drunk simply does not assist upon the proper meaning of the words, although even Constable Giles said, in relation to the remark that immediately followed that, that the respondent had spoken in an oppressive manner. There is, in fact, no evidence that Constable Giles denied the words being spoken aggressively. The case does not set out such material. Certainly the Magistrates do not reject the evidence of Constable Gill that the words were said, either expressly or indeed by implication. Secondly, they rely upon the fact that Constable Gill said the words were shouted whereas Constable Giles did not corroborate this evidence. In fact, again, there is no evidence as to whether Constable Giles did expressly deal with Constable Gill's assertion of shouting. But whether or not he shouted does not, of itself, mean the words could not be construed as abusive.

The Magistrates then concluded that Constable Gill's statement that he felt "a bit distressed" could not reasonably construe as causing harassment, alarm and distress. Mr Tomlinson argued that this reveals a number of clear errors. First, it is not relevant to the first limb, namely whether the words were threatening, abusive or insulting. Secondly, the question, in any event, was not whether Constable Gill was in fact caused distress, but whether the words were likely to cause him harassment, alarm and distress. His evidence, both in-chief and when cross-examined, was that he had been caused distress. Constable Giles, when he gave evidence as recorded in the case, observed that after the respondent had said something he did not understand, presumably "Kalima", he thought by Constable Gill's face that it had disturbed him.

How then does Mr Sinclair seek to use this particular finding? He argues that what the Magistrates meant was that they were entitled to take into account the reaction of Constable Gill in deciding whether or not the words were in fact abusive. That is not what the Magistrates said. This particular reason is not directed to what the respondent was saying, but rather to the impact of whatever it was he said on Constable Gill.

The fifth reason advanced by the Magistrates was that Constable Giles gave evidence of the respondent's demeanour and that they considered the respondent to be confused, upset, continually talking and drunk but that his manner was not threatening, abusive or insulting. No evidence to back up this particular conclusion is recorded in the case. In any event, the respondent's manner does not go to the question of whether the words were, in fact, abusive or insulting but to what words were said and the likely impact of them.

Mr Sinclair argues that this finding, effectively, is an implicit rejection of Constable Gill's evidence. He submits that the Magistrates are sometimes reluctant to conclude that a witness's evidence is incredible, and therefore rather than reach that conclusion of fact, their view is wrapped up in this way. The difficulty with that submission is that this particular sentence does not refer to Constable Gill at all. It identifies their perception, from Constable Giles' evidence, of the respondent. It does not suggest that Constable Gill did not hear the words that were said, and does not suggest that he was not caused a measure of distress. Neither does it suggest that the words themselves were not potentially abusive or insulting, although it is a reason, apparently, for concluding that the words could not reasonably be construed as abusive or insulting.

The next reason provided by the Magistrates was that the words used did not make sense and it was not clear what the officers perceived them to mean. Mr Tomlinson submits that this point is difficult to understand, and with that difficulty I have considerable sympathy. Whether or not other analogies are appropriate, "You're fucking Islam" directed to an Asian is clearly intended to be derogatory of that person.

Finally, the Magistrates provide as a reason for concluding that the words could not reasonably construed as abusive or insulting the fact that the only persons present were two police officers. In my judgment, that police officers were those that heard the words says nothing at all about whether the words are, or are properly construed to be, abusive or insulting. Whether they were likely to cause distress is, of course, another matter but it is not on that basis that this submission was accepted and the allegation dismissed. Mr Sinclair recognised that some of the reasoning advanced by the Magistrates for the conclusion they reached does not properly bear analysis, but attractively submits that the words in context are neither abusive or insulting. He argues that to say that someone was a Muslim was not insulting itself, and the addition of the epithet "fucking", does not make it so given the regular misuse of that word in common speech. I do not agree.

In my judgment, to refer to an Asian as a "fucking Islam" is almost undeniably abusive, if not insulting. I recognise, of course, that I did not hear the evidence and am not in the position to say, although frankly I doubt, whether the way in which the words were spoken and their context robbed them of offence. I can therefore only analyse the reasons given by the Magistrates to see whether there was anything to remove the sting of those comments. I have analysed those reasons in the course of this judgment and, in my judgment, they simply do not withstand analysis. On that basis, I conclude that the Magistrates either have applied the wrong test or allowed themselves to reach a decision by a process of flawed and perverse analysis. To say, as they do, that no reasonable tribunal could find the words abusive or insulting and likely to cause distress is, in my judgment, simply unsustainable. I would therefore answer the stated question, namely whether in the circumstances of the case the Magistrates were correct to conclude that there was no case to answer, in the negative. I quash the decision and, having regard to the lapse of time, order the matter to be re-heard before a different bench.

MR TOMLINSON: My Lord, there are no other matters.

MR JUSTICE LEVESON: Mr Sinclair, Mr Tomlinson, thank you very much.