Law Society Gazette/1989/Issue 1, January/Articles/CRIMINAL LAW – Offensive behaviour: the police officer as Victim – (1989) LS Gaz, 5 Jan, 86 (14)
LAW SOCIETY GAZETTE
(1989) LS Gaz, 5 Jan, 86 (14)
5 January 1989
CRIMINAL LAW – Offensive behaviour: the police officer as Victim
John Marston, solicitor, senior lecturer, school of law, Leicester Polytechnic
COPYRIGHT (c) 1989 THE LAW SOCIETY
In DPP v Orum  3 All ER 449, the Divisional Court confirmed the view of most commentators that s.5 of the Public Order Act 1986 can properly be applied to situations involving police officers but no members of the general public save for the defendant himself. The problem resolved by the Divisional Court arose because there seemed to be conflicting opinions amongst practitioners, including clerks to the justices, as to the exact scope of s.5.
S.5(1) provides that:
‘A person is guilty of an offence if he:
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.’
Status of the police officer
One view of the section was that a police officer could not be a person ‘likely to be caused harassment, alarm or distress’ by ‘threatening, abusive or insulting words or behaviour or disorderly behaviour’. This view was induced by several cases on s.5 of the Public Order Act 1936 which quite properly decided that, as the offence was then drawn, an offence under s.5 could not be made out where the object of the prohibited behaviour or words was a police o fficer (or officers) and where there was no-one else present who was likely to be encouraged to breach the peace (see Marsh v Arscott (1982) 75 Cr App R 211; McBean v Parker (1983) Crim LR 399; Parkin v Norman  2 All ER 583). There was a presumption that a police officer was not likely to react by himself causing a breach of the peace. If it could be demonstrated that there were other persons present who were likely to be encouraged to commit breaches of the peace then an offence was made out (see for example Simcock v Rhodes (177) 66 Cr App R 105).
When s.5 of the 1936 Act was redrawn it was the clear intention of the government, and the Law Commission, that the sometimes unfortunate consequences of such decisions were to be avoided by the creation of offences under s.4 and s.5. S.4(1) provides, in a sentence of inordinate length and complexity, that:
‘A person is guilty of an offence if he:
(a) uses towards another person threatening, abusive or insulting words or behaviour, or
(b) distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting,
with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.’
In s.4 of the 1986 Act the element of likelihood of a breach of the peace found in the 1936 Act was omitted and there was sustituted, inter alia, a reference to an intention to cause, or likelihood of causing, someone to fear that immediate and unlawful violence would be used against them. Thus, a police officer confronted by a belligerent opponent might be the victim of an offence under s.4 since he would be likely to believe that immediate unlawful violence would be used against him. Of course, where there were other belligerents in the vicinity then the offence would be made out either on the basis described or on the basis that immediate unlawful violence would be provoked, ie that the others would be encouraged to such violence.
Anxiety not injury
On the other hand s.5 of the Act was designed to cater for the likely reaction of an identifiable victim, not in terms of fear for personal safety, but rather an extreme sense of anxiety described in s.5 as ‘harassment, alarm or distress’. It is therefore crucial to note that in s.5, and in part of s.4, what matters is not the likely physical reaction of the victim, or others, but the likely mental reaction. As McCullough J observed: ‘It is improbable in the extreme that any police officer would ever be provoked by threatening, abusive or insulting words or behaviour to cause a breach of the peace, but it is by no means impossible that such an officer may not feel harassed, alarmed or distressed as a result of such words or behaviour.’ By way of gloss on this observation, what matters is the likely reaction not the actual reaction, so the test is one of likelihood. There should be evidence upon this, and the obvious starting point is the actual reaction of the constable concerned. Glidewell LJ made the vital point that:
‘. . . a police officer can be a person who is likely to be caused harassment and so on. However, that is not to say that the opposite is necessarily the case, namely, it is not to say that every police officer in this situation is to be assumed to be a person who is caused harassment. Very frequently, words and behaviour with which the police officers will be wearily familiar will have little emotional impact on them save that of boredom.’
In D P P v Orum itself (a case of a domestic dispute in public) the language used by the respondent was simply that with which police officers are regrettably and commonly bombarded when dealing with those who have consumed a quantity of alcohol. Not every case will reveal facts suggesting that the villified police officer will be likely to suffer the appropriate mental response. Indeed, it could be suggested that by virtue of his training and experience a police officer is not expected to be affected in the usual fashion. Whether this is so in specific instances is entirely a matter for the magistrates, after a critical enquiry as to the precise conduct of the defendant has been carried out. It should be demonstrated why in that case that 4particular police officer was a person who was likely to react in the required fashion. It should also be demonstrated into which of the categories it is alleged the reaction falls.
Examples of occasions when the necessary reaction will be elicited are quite easy to imagine, for example a response to racial taunts or references to an event such as the death of a local police officer. On such an enquiry, much will depend upon the magistrates’ view of ‘harassment, alarm or distress’ and the stringency with which they apply these strong words. The words are stronger than ‘annoyance’ which may be found in a variety of local acts or bylaws (see, for example, the case of Brabham v Wookey (1901) 18 TLR 99). Would it, for example, be harassment to make abusive or insulting or threatening remarks or behaviour where a police officer is making or attempting to make an arrest?
Even if a restrictive view is taken of the likely reaction of police officers in the ‘run of the mill’ case, it should not be thought that the police officer is left entirely helpless. S.4 or the offence of being drunk and disorderly may be invoked where appropriate. In addition, the police officer may believe that a breach of the peace is likely, or is occurring, and he may detain (see Albert v Lavin  3 All ER 878) or arrest with a view to instigating binding over measures. For the power of arrest see R v Howell  3 All ER 383. Any assault or obstruction of him in the course of that detention or arrest will be an offence under s.51 of the Police Act 1964, an offence more serious than that in s.5, and if violence or threats are used against him during the arrest then there will also be an offence under s.4.