Swearing at the Police

Now here is an interesting one. No one can deny that the use of foul language has become second nature to some people. Regrettably there are still a lot of folk in the big wide world who do not swear and moreover can be alarmed or offended by it.

Why don’t you go and grow some f’ing balls then.

23860378_89e8ebd646_oWell, it’s not as easy as that. We should all be mindful of other people’s feelings – it is part of the common law [Do no harm] that harm includes psychological harm. Without becoming embroiled in the ever ongoing arguments about respect, discipline and the like we must not forget that we are all individually liable for our own actions.

Now, we all know that there are times that things can get a little tense between members of the public (particularly protesters or activists) and the police. There are countless reality TV programs about the daily lives of the police out in the field and these programs are not short of the police making very stern remarks about arresting someone because they are swearing. Can they do this?

No.

Well, almost no. The use of foul language has historically been dealt with under Section 5 of the Public Order Act which states:

threatening, abusive or insulting words or behaviour…within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

We can deduct from this that if you undertake your very best curse-tirade at a copper while there is a little old lady close-by, then you are opening yourself up to a discussion about arrest (set aside Article 61 for one moment). However there are swathes of evidence out there that police are arresting or threatening to arrest people for swearing at the police whilst the police were undertaking a task. This is not permitted.

In 2011 a High Court decision made it clear that the police, due to the nature of their job, are subject to verbal abuse on a regular basis and are unlikely to be alarmed or offended by it.

Swearing at the police is not illegal.

 

Harvey v. DPP [2011]

“His conviction was overturned by the High Court, which noted that the police frequently hear such language, and there was no evidence the words had caused harassment, alarm or distress either to the officers or the young people present at the time;”

*link http://www.criminallawandjustice.co.uk/features/Swearing-Police

So to be clear, as long as there is no other person in the vicinity who is likely to be distressed by your eloquent use of the vernacular 😉 swearing at the police is NOT a criminal offence and they CANNOT arrest you under any circumstances for such behaviour.

Please don’t misunderstand the purpose of this post. We are not in any way, shape or form inciting or recommending that you swear at the police. Ever. But. . . If you find yourself in a tense situation and let fly with a few ‘fucks’ or whatever, you SHOULD NOT be arrested for it without a burden of proof by the police that a bystander was affected by the incident. This is simply another control mechanism the police use to try to gain the upper hand whilst enforcing government policy (er law??). They are, after all, Policy-Enforcers, not police constables any more.


 

Background on this matter.

Two police officers stopped a group of young people, including Mr Harvey, and decided to search them. Harvey said to the officer searching him “Fuck this man, I ain’t been smoking nothing”.

The officer warned him that if he continued to swear he would be arrested for an offence under Section 5 of the 1986 Act. When the search produced nothing, Harvey added “told you, you won’t find fuck all”. The officer warned him again. He then asked Harvey if he had a middle name, to which Harvey responded “No, I’ve already fucking told you so.” The officer arrested him for a Section 5 offence. An assault charge was also brought against him in relation to a scuffle that followed.

In the Magistrates Court, Harvey was acquitted of the assault charge, but convicted of the section 5 offence.

In the High Court, Mr Justice Bean had to decide whether the three incidences of swearing amounted to the offence set out in section 5, that is, whether Mr Harvey had used threatening, abusive or insulting words or behaviour…within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

The question in this case was not whether the words were threatening, abusive or insulting. Contrary to, amongst others, the case analysis of the decision on Westlaw, Justice Bean in fact upheld the Magistrates’ decision that the words in question amounted to abusive or insulting words or behaviour. The appeal turned rather on the second element of the offence, ie, whether people who heard the words were likely to be caused harassment, alarm or distress by them.

Bean J started by noting that the courts were all too familiar with such language – “A search on the legal database Lexis for cases in which either the word “fuck” or the word “fucking” appear produces 2,124 results.”

Reference was then made to the case law establishing the following:

(a)    “[V]ery frequently words and behaviour with which police officers will be wearily familiar will have little emotional impact on them save that of boredom” (per Glidewell LJ,  DPP v Orum [1989] Cr App Rep 261).

(b)    However, words such as “fuck” or “fucking” are potentially abusive – “[f]requently though they may be used these days, we have not yet reached the stage where a court is required to conclude that those words are of such little significance that they no longer constitute abuse.”(per Mr Justice Fulford, Southard v DPP [2006] EWHC 3449).

(c)    Whether the use of the words did or was likely to cause harassment in any given case is a question of fact to be decided in the specific circumstances of the case (Orum and Southard);

(d)    In order to show that the words were used within the hearing of someone who was likely to be alarmed, distressed or harassed thereby, it is not necessary to adduce evidence from bystanders. However, “[t]he 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.” (per Mr Justice Collins, Holloway v DPP [2004] EWHC 2621 (Admin)).

Turning to the case before him, Mr Justice Bean held that there was simply no evidence that the police officers or others in the vicinity had been caused or were likely to have been caused harassment, alarm or distress by the words. In fact, none of the witnesses was asked the question. The Judge added:

Where witnesses have given evidence of an incident which forms the basis of a charge under section 5 of the Public Order Act 1986, but have said nothing and been asked nothing about experiencing harassment, alarm or distress, there is no sound basis for the court to reach that conclusion for itself. This is particularly so in the case of police officers because, as Glidewell LJ observed in Orum, they hear such words all too frequently as part of their job. This is not to say that such words are incapable of causing police officers to experience alarm, distress or harassment. It depends, as the court said in Orum and Southard, on the facts; but where a witness has been silent on the point it is wrong to draw inferences.”

As to the neighbours and people in the flats who might have heard the swear words, it was not enough simply to say that the incident took place outside a block of flats and that there were people around who did not need to hear the words. There was no evidence of anybody being within earshot – other than the group of young people being searched.

As far as that group were concerned, it was wrong to infer from the evidence that they were caused alarm or distress by the use of such “rather commonplace” words.

These were the bases upon which Mr Justice Bean quashed the conviction.


 

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