Section 5 Of The Public Order Act 1986: The Impact Of Harvey v DPP

Article by Richard Wingfield, pupil at 6 Kings Bench Walk

The broad scope and low threshold of the offence under section 5 of the Public Order Act 1986 makes it frequently prosecuted and familiar to practitioners. The recent case of Harvey v Director of Public Prosecutions [2011] All ER (D) 143 (Nov) required the High Court to re-examine the not uncommon situation where a person has been charged with a section 5 offence after swearing at a police officer. The fairly short and ex-tempore judgment provides some fresh guidance on determining whether words will be considered "abusive" under section 5, and when evidence of their impact upon individuals will be required.

Section 5 of the Public Order Act 1986

A section 5 offence comprises two elements:

A person must (a) use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) display any writing, sign or other visible representation which is threatening, abusive or insulting; and The words or behaviour, or writing, sign of other visible representation must be within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. Unique amongst the public order offences in the Act, section 5 requires no proof of any intention, nor that any person actually be caused harassment, alarm or distress, only that the act took place within the hearing or sight of a person "likely" to be caused harassment, alarm or distress.

The facts

The appellant, Denzel Harvey, was stopped by police outside of a block of flats on suspicion of possessing cannabis. One attempted to search him and he objected saying, "Fuck this man, I ain't been smoking nothing". He was told that if he continued to swear he would be arrested for a section 5 offence. He was searched and, when nothing was found, said, "Told you, you won't find fuck all". He was warned again about swearing. Finally, when he was asked if he had a middle name, replied, "No, I've already fucking told you so". He was arrested and charged with a section 5 offence.

At trial, no evidence was given that any of the officers had been harassed, alarmed or distressed by the appellant's words; nor was any evidence given that anyone else had been. Nevertheless, the appellant was convicted on the basis that the defendant used the words in a public area in the middle of a block of flats and that there were people nearby.

The decision

The court held that the first element that must be proved is that the words spoken were "threatening, abusive or insulting". In relation to the word "fuck", the High Court had held in Southard v DPP [2006] EWHC 3449 (Admin) that (emphasis added):

"...[W]hether or not the person addressed is...