Director of Public Prosecutions (DPP) v Smith

On 9 January 2017 Mr Richie Smith appeared before the City of London Justices charged with two offences said to have been committed at St Pancras Station on 31 July 2016. One charge was that of using threatening or abusive words or behaviour likely to cause harassment, alarm or distress contrary to section 5 of the Public Order Act 1986. The second was the racially aggravated form of the same offence contrary to section 31 of the Crime and Disorder Act 1998.

The magistrates heard evidence from PC Wigley of the British Transport Police for the prosecution and from the defendant himself. They acquitted Mr Smith of both charges. The Director of Public Prosecutions appeals to this court by way of case stated. We therefore take the facts as helpfully set out in the case stated.

PC Wigley informed the court that he attended the platform with a fellow officer as a result of a call being received concerning two people being racially abusive on a train. After speaking to both men one grabbed his hand quite tightly which resulted in the officer and his colleague speaking to them about the need to be more gentle with people. The officer agreed that Richie Smith did not seem to understand that he was not being detained at this point. Both men were under the influence of alcohol with arms waving and they were quite loud. The area was quiet but had people around. Mr Smith said the words “niggers and Pakis” quite loud. The officer found the language quite offensive to himself and stated that obviously others would also find it offensive. It was his opinion that the proximity where people were would have meant that they would also have heard the racial comment.

Footage from PC Wigley’s body camera was played to the court. This showed Richie Smith and his brother speaking to the police officers in raised voices. The area was quiet but it could be seen on the footage that there were people in the vicinity of the incident. Richie Smith can be clearly heard saying the words “niggers and Pakis”: as he bends down to pick up his bags he says “go deal with some niggers and Pakis”.

The defendant then gave evidence. He said that he and his brother had come on a 2 hours 45 minutes train journey from Sheffield. They had a few drinks before they got on the train and also shared a bottle of wine with a couple on the train. He and his brother could not understand why they were approached by police when they got off the train. There was then a bit of an “argy bargy” with the police before the police then let them go; because his brother had a strong handshake, however, the officers returned to them. He didn’t understand that he could go and didn’t hear the officer say that he was free to leave. Mr Smith was in shock and disbelief and leaned down for his bag and said “those words” for which he apologises. He stated however that he did not say them to anybody, and his girlfriend is Asian. He regrets the words used and agreed that the words “nigger” and “Paki” are abusive.

At paragraph 4 of the case stated it is noted that:-

“The disputed issue of fact or law was that Mr Smith denied that the language in question was within the hearing of anyone who was likely to be caused harassment, alarm or distress and [said] he was not drunk.”

The justices did not, unfortunately, make any finding as to whether they accepted PC’s Wigley’s “opinion” that the proximity of members of the public in the vicinity of the incident was such that they would also have heard the racial comment.

The justices were referred to the case of DPP v Oram (1989) 88 Cr App Rep 261 and to the relevant statutes. At paragraph 10 of the case stated it is noted that they were advised in open court by their legal adviser of the mental element of the offence under s 5 of the 1986 Act as set out in s 6(4), which reads as follows:-

“A person is guilty of an offence under s.5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening or abusive or is aware that it may be threatening or abusive or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly”

I should set out in full the final three paragraphs of the case stated:-

“13.

We were of the opinion that the respondent had a lot to drink that day and was intoxicated. He admitted saying the words and was very sorry for his behaviour. There is no doubt that the language the respondent used was offensive and the officer said it is unacceptable in a public place.

14.

Whilst the respondent’s behaviour was irresponsible we find that his intent to cause harm/distress was lacking. Accordingly the appellant has not proved beyond all reasonable doubt that the elements of the offences have been proven and so we found the respondent not guilty of both offences.

15.

The question for the opinion of the High Court is: was it reasonably open to this court to acquit the respondent on the basis that his intent to cause harassment, alarm or distress was lacking given there is no requirement under section 5 to prove intent?”

As the wording of the question (no doubt drafted by the legal adviser) indicates, there are flaws in the reasoning of the decision. In particular, in a case brought under s 5 of the Public Order Act 1986 (as opposed to a case under s 4A of the same Act) the prosecution do not have to prove any intention to cause harassment, alarm or distress. The mental element which they do have to prove is that set out in s 6(4), namely either an intention that the words or behaviour should be threatening or abusive; or an awareness that the words or behaviour may be threatening or abusive (with similar alternatives in respect of disorderly behaviour which are not relevant to the present case). Section 6(5) further provides that, for the purposes of s 6 “a person whose awareness is impaired by intoxication shall be taken to be aware of that of which he would be aware if not intoxicated”.

Accordingly, as Ms Susan Wright for the respondent realistically conceded, it was not reasonably open to the justices to acquit the respondent on the basis that his intent to cause harassment, alarm or distress was lacking. There is no requirement under s 5 to provide such an intent. The certified question must therefore be answered in the negative.

This is not the only flaw in the decision below. In the “grounds for decision” the justices found that the respondent had had a lot to drink that day and was intoxicated. This was a finding of fact they were entitled to make, but it is irrelevant to whether the s 5 offence had been committed. As s 6(5) makes clear, a drunken defendant is treated for the purposes of the issue of awareness as if he had been sober. It is also irrelevant to the issue of guilt or innocence, as opposed to sentence in the event of conviction, that the defendant was very sorry for his behaviour.

Ms Wright, however, argues that the acquittal should be upheld on a different basis, namely that PC Wigley had not given evidence that he or anyone else felt harassed, alarmed or distressed by the words which Mr Smith admitted saying. All that PC Wigley had said was that he found them offensive. The justices agreed that the language was offensive and Ms Wright concedes that it was. But that is not the same thing as a finding that they caused anyone alarm or distress. She cited Harvey v DPP [2011] EWHC 3992.

In Harvey the defendant, who was being arrested (on a charge of which he was subsequently acquitted), swore at the two arresting officers. The officers gave evidence of the words he had used but neither said anything about having experienced alarm or distress. There was no evidence of anyone else having been within earshot other than associates of the defendant. Reference was made to observations of Glidewell LJ in Oram v DPP:

Mr Douglas-Jones, on the other hand, relies on the decision of the Divisional Court in Taylor v DPP [2006] EWHC 1202 (Admin). The district judge found that the appellant had shouted at police officers words such as "fucking nigger" and "fucking coon bitch", along with a good deal of other bad language. He was of the opinion that not only two policemen, but an ambulance crew, a fellow occupant of the premises at which the appellant was found, and several neighbours were all near enough to hear this racially abusive language. No witness appears to have stated explicitly that he or she was distressed by hearing those words, but the district judge found – unsurprisingly, in my view - that “anybody hearing that sort of language, black or white, would be likely to be caused distress”. The conviction was upheld.

No separate argument was addressed to us, either orally or in writing, about the charge under s 31 of the 1998 Act. If the s 5 charge fails the s 31 charge must fail too, although the converse is not the case.

Section 5 of the 1986 Act makes no mention of offensiveness. Not everything which is offensive is distressing, although there is plainly a good deal of overlap between the two categories. The present case, on the facts found by the justices, appears to me to be somewhere on the spectrum between Harvey and Taylor. I cannot agree that there was no case for Mr Ritchie to answer; indeed no such submission was made to the justices. It would be open to the trial court, especially if satisfied that the words were overheard by members of the public, to find that those who heard them were caused, or were likely to have been caused, alarm or distress. But it will be a question of fact for the magistrates’ court at the rehearing whether the prosecution have proved their case; and Mr Douglas-Jones quite rightly has not submitted that having allowed the appeal we should convict the respondent ourselves.

I would therefore allow the appeal, quash the decision of the justices, and remit the case to the City of London Magistrates’ Court for rehearing by a differently constituted court. I would make no order as to costs.

I agree.