Parkin v Norman; Valentine v Lilley

All England Law Reports/1982/Volume 2 /Parkin v Norman; Valentine v Lilley – [1982] 2 All ER 583

[1982] 2 All ER 583

Parkin v Norman; Valentine v Lilley

 

QUEEN’S BENCH DIVISION

DONALDSON LJ AND MCCULLOUGH J

23 FEBRUARY, 10 MARCH 1982

 

Public order – Offensive conduct conducive to breaches of peace – Threatening, abusive or insulting words or behaviour – Insulting – Nature of insulting behaviour – Homosexual activity in public lavatory – Accused making homosexual advances to plain clothes police officer – Accused’s behaviour not observed by anyone else – Whether accused using ‘insulting behaviour … likely’ to occasion breach of peace – Whether likelihood of disturbance short of violence sufficient to constitute breach of peace – Public Order Act 1936, s 5.

 

In two separate cases the appellant entered a public lavatory and while there made homosexual advances to a plain clothes police officer (who was there to investigate any homosexual conduct) by making indecent gestures and masturbating while looking at the officer. In the first case the appellant desisted from his behaviour when a third person entered the lavatory; in the second case no one else was present in the lavatory. In each case the appellant was convicted of insulting behaviour whereby a breach of the peace was likely to be occasioned, contrary to s 5a of the Public Order Act 1936. In the second case the justices concluded that a breach of the peace could occur by way of a disturbance or by violence. In each case the appellant appealed against his conviction on the grounds (i) that his conduct was not capable of amounting to ‘insulting behaviour’ within s 5 because the officers concerned were not insulted, and in any event s 5 required an intent to insult and neither appellant had intended to insult the police officer or anyone else, and (ii) that a breach of the peace was not ‘likely’ to be occasioned by the appellant’s behaviour because it was not likely that the police officer or the appellant would break the peace by violence, and the mere possibility that a third person might have entered the lavatory and become so incensed by the appellant’s behaviour as to use or threaten violence did not amount to a likelihood that there would be a breach of the peace. In addition the appellant in the second case appealed on the further ground that a mere disturbance could not constitute a breach of the peace, since a breach of the peace required threatened or actual violence.

 

a     Section 5, so far as material, is set out at p 585 d, post

 

Held – (1) Since the purpose of the 1936 Act was to promote good order in places to which the public had access, conduct of an insulting character which was likely to occasion a breach of the peace came within s 5 of that Act whether or not it was intended to be insulting conduct, and therefore an intention to insult was not a necessary ingredient of the offence under s 5. Furthermore, insulting conduct did not lose its insulting character merely because the persons who had witnessed it had not been insulted. To constitute insulting conduct it was necessary that one person should have directed an insult at another who could perceive it to be such. Thus, although neither appellant had been trying to insult the police officer, but on the contrary had thought he was another homosexual, and although the police officers would not have been insulted by the appellants’ behaviour, nevertheless, as the person importuned by each appellant might have been an ordinary heterosexual person using the lavatory for normal purposes and might have been insulted by the appellants’ behaviour because it was tantamount to a statement by the appellant that he believed the other to be a homosexual, the behaviour of each appellant could fairly be regarded as being potentially insulting, and therefore constituting insulting behaviour within s 5 (see p 586 h j, p 587 a b j, p 588 d e and g to 

[1982] 2 All ER 583 at  584

 

p 589 b and p 590 a b, post); dictum of Viscount Dilhorne in Brutus v Cozens [1972] 2 All ER at 1302 considered.

 

(2) However, although it was proper when determining whether a breach of the peace was ‘likely’ to result from insulting behaviour to take into account the reactions of others who might have observed the behaviour apart from the person to whom the behaviour was addressed, since neither the appellants nor the police officers to whom their behaviour was addressed would have been likely to break the peace and there was only a possibility, as opposed to a probability, that any other person who might have entered the lavatories and observed the appellants’ behaviour towards the police officers would have been so incensed as to use or threaten violence, the evidence in both cases did not establish that the appellants’insulting behaviour was likely to (as distinct from liable to) occasion breaches of the peace within s 5. Furthermore, in the second case the justices had been wrong to hold that a breach of the peace could occur by way of a disturbance not involving violence or a threat of violence, because to constitute a breach of the peace there had to be threatened or actual violence. It followed that breaches of the peace were not likely to have been occasioned by the appellants’ insulting behaviour and their convictions would accordingly be quashed (see p 589 b to d and p 590 b c and j, post); dictum of Watkins LJ in R v Howell [1981] 3 All ER at 389 applied.

 

Per curiam. If proper attention is paid to the word ‘likely’ in the phrase ‘whereby a breach of the peace is likely to be occasioned’ in s 5 of the 1936 Act, a charge under s 5 will more often than not be inappropriate in the case of homosexual activity in public lavatories (see p 591 a b, post).

Notes

 

For the offence of using insulting words or behaviour likely to cause a breach of the peace, see 11 Halsbury’s Laws (4th edn) para 850, and for cases on the subject, see 15 Digest (Reissue) 908–910, 7797–7807.

 

For the Public Order Act 1936, s 5, see 8 Halsbury’s Statutes (3rd edn) 332.

 

Cases referred to in judgment

Ballard v Blythe (3 November 1980, unreported), QBD.

 

Brutus v Cozens [1972] 2 All ER 1297, [1973] AC 854, [1972] 3 WLR 521, HL; rvsg [1972] 2 All ER 1, [1972] 1 WLR 484, DC, 15 Digest (Reissue) 910, 7807.

 

Cawley v Frost [1976] 3 All ER 743, [1976] 1 WLR 1207, DC, 15 Digest (Reissue) 910, 7805.

 

R v Chief Constable of Devon and Cornwall, ex p Central Electricity Generating Board [1981] 3 All ER 826, [1981] 3 WLR 967, CA.

 

R v Howell [1981] 3 All ER 383, [1981] 3 WLR 501, CA.

 

Cases also cited

 

Jordan v Burgoyne [1963] 2 All ER 225, [1963] 2 QB 744, DC.

 

R v Ambrose (1973) 57 Cr App R 538, CA.

 

R v Preece, R v Howells [1976] 2 All ER 690, [1977] QB 370, CA.

 

R v Venna [1975] 3 All ER 788, [1976] QB 421, CA.

Cases stated

 

Parkin v Norman

 

Thomas Henry Parkin appealed by way of case stated by the Crown Court at Nottingham (his Honour Judge Ellis sitting with justices) in respect of its adjudication on 30 September 1981 whereby it dismissed his appeal against his conviction in the Mansfield Magistrates’ Court on 4 August 1981 on a charge laid by the respondent, Leslie James Norman, a police constable, of using threatening, abusive or insulting words or behaviour in a public place with intent to provoke a breach of the peace whereby a breach of the peace was likely to be occasioned, contrary to s 5 of the Public Order Act 1936. The facts are set out in the judgment of the court.

[1982] 2 All ER 583 at  585

 

Valentine v Lilley

 

James Valentine appealed by way of case stated by the justices for the County of Nottingham sitting as a magistrates’ court at Mansfield in respect of their adjudication on 12 August 1981 whereby they convicted the appellant on a charge laid by the respondent, John Lilley, a superintendent of police, of using insulting behaviour whereby a breach of the peace was likely to be occasioned, contrary to s 5 of the Public Order Act 1936. The facts are set out in the judgment of the court.

Adrian Fulford for the appellant Parkin.

Richard Payne for the appellant Valentine.

Richard S A Benson for both respondents.

Cur adv vult

10 March 1982. The following judgment was delivered.

McCULLOUGH J

read the following judgment of the court: These two cases raise questions involving the application of s 5 of the Public Order Act 1936, where accusations are made of indecent behaviour of a homosexual nature in public lavatories. With the consent of all the parties they were heard together.

 

The material words of the section are:

 

‘Any person who in any public place … (a) uses threatening, abusive or insulting words or behaviour … with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence … ‘

 

Immaterial amendments were made by later Acts.

 

Each appellant was found to have been handling his penis in a way which clearly indicated that he wanted his behaviour to be seen by the only other person present at the urinals in a public lavatory. In each case, unknown to the appellant, the other person was a police officer in plain clothes who, after a suitable interval, arrested him. Each was convicted. Each appeals to this court by way of case stated. Each argues that his behaviour was not insulting and that no breach of the peace was likely to be occasioned by it.

 

Parkin v Norman

 

On 4 August 198 1, at the Mansfield Magistrates’ Court, the appellant was convicted of an offence under s 5 of the public OrderAct 1936, the particulars being that he—

‘on 17th February, 1981 … at a public place, namely New Street public toilets, Sutton in Ashfield, did use threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace was likely to be occasioned.’

 

On 21 August 1981 his appeal against conviction was dismissed by the Crown Court at Nottingham.

 

The following facts were found. At 4.52 pm the appellant entered a gentlemen’s public lavatory in New Street, Sutton in Ashfield, where the respondent, a plain clothes police officer, was already standing at a urinal. The appellant went to a urinal two clear spaces away; he stood back about a foot from it, holding his penis and looked several times at the respondent.

 

At 4.53 pm a third man came in, used a urinal between the other two and left. While he was present the appellant stood forward and did not look towards the respondent. After the man left he stepped back, partly turned towards the respondent and began masturbating. The appellant appeared nervous and was continually looking at the respondent and at the entrance to the lavatories. At 5.00 pm he turned to face the respondent still holding his penis. He had stopped masturbating. The respondent then identified himself and arrested him. When questioned at the police station he denied that he had been masturbating.

[1982] 2 All ER 583 at  586

 

A submission that there was no case to answer was made at the close of the respondent’s case. This was rejected. The appellant gave evidence and, although this does not appear from the case, we understand that he denied that he had been masturbating.

 

The Crown Court rejected submissions made on his behalf that, even if the police evidence was accepted, his conduct was not capable of amounting to ‘insulting behaviour’ and that there was no likelihood of any breach of the peace. The court’s reasoning is not given in the case, which merely records that they were of the opinion that the behaviour was insulting and that a breach of the peace was likely to be occasioned thereby. The question posed is ‘whether upon the facts which we found there was sufficient evidence to support our decision’.

 

The evidence has not been set out; so its sufficiency cannot be assessed. Counsel for the appellant accepts that there was evidence on which the court could properly find the facts as it did, but, he submits, on a correct interpretation of the law, those facts could not sustain a conviction.

 

There was, he submits, no insulting behaviour. The officer was not insulted. Only one other person entered the lavatory while the appellant was doing what he did and, while this third person was present, he desisted. Had anyone else entered there is no reason to suppose that he would not have done so again. Thus no one was insulted, nor was anyone likely to have been.

 

He further submits that in any event an insult requires an intention to insult. The appellant never intended to insult any third person and, whatever his intention may have been in doing what he did in sight of the respondent, it was not to insult him.

 

Counsel for the appellant next submits that no breach of the peace was likely to be occasioned. Likely means ‘probable’. There was no likelihood that the respondent would break the peace, nor the appellant himself, nor any other visitor to the lavatory, since the likelihood was that the appellant would desist and no newcomer would see him behaving indecently. While there was a chance that someone might come in, catch the appellant unawares and be so incensed by what he saw that he would either use or threaten violence, this was no more than an outside possibility.

 

Counsel for the appellant bolsters these submissions by references to various other criminal offences of which the appellant might have been convicted. That being so, he submits it is wholly wrong to strain the language of s 5 of the Public Order Act 1936 to embrace circumstances which Parliament can never have intended they should cover. He draws our attention to the long title to the Act and to the scheme of its provisions as a whole which, he says, were intended to deal with political and quasi-military activities.

 

Our task is to construe the words of s 5 in the light of the Act as a whole, including its long title, to which reference can properly be made if the words of the section are ambiguous. If, having construed it, we are led to the conclusion that those who behave as the appellant is found to have done may also be guilty of offences against other provisions (eg s 28 of the Town Police Clauses Act 1847 or s 32 of the Sexual Offences Act 1956) this cannot alter the construction arrived at. In such an event it is for others, not us, to decide which provision to use.

 

Equally, if the words of the section, properly construed, are apt to fit behaviour of the kind in question (ie homosexual activity in public lavatories) it is immaterial that, when parliament enacted the section, it did not contemplate that it would be so used.

 

The purpose of the 1936 Act was to promote good order in places to which the public have access: see Cawley v Frost [1976] 3 All ER 743 at 748, [1976] 1 WLR 1207 at 1212 per Lord Widgery QJ. It is clear, both from the long title and from ss 1, 2 and 4, that Parliament intended to prevent activities liable to lead to public disorder, regardless of whether or not those engaging in them intended that disorder should result. The use of the phrase ‘whereby a breach of the peace is likely to be occasioned’ in s 5 reflects this thinking. The phrase is absent from the earlier sections, no doubt because Parliament regarded the wearing of any political uniform (s 1), the training of any quasi-military body (s 2) and the taking of offensive weapons to public meetings or on public processions (s 4) as threats to public order per se. But not all threats, abuse or insults necessarily have this result. Qualifying words were therefore required, and conduct of this kind was only 

[1982] 2 All ER 583 at  587

 

prohibited if it was likely to lead to a breach of the peace or, as was added, if it was so intended.

 

It was the likely effect of the conduct on those who witnessed it with which Parliament was chiefly concerned. What is likely to cause someone to break the peace is his feeling that he has been threatened or abused or insulted, and this will be so whether or not the words or behaviour were intended to threaten or to abuse or to insult.

 

In our judgments threats, abuse and insults are within the section whether or not they were intended to be threats, abuse or insults. ‘Threatening, abusive or insulting words or behaviour’ are simply words or behaviour that are threatening, abusive or insulting in character. We have reached this conclusion despite some words of Viscount Dilhorne to be found in Brutus v Cozens [1972] 2 All ER 1297, [1973] AC 854. In that case B had interrupted play on the no 2 court at Wimbledon during the annual open tennis tournament of the All England Lawn Tennis Club. A match was in progress; one of the players was a South African. B went onto the court, blew a whistle and threw leaflets about. Nine or ten others joined him with placards or banners, on which anti-apartheid slogans were written, and more leaflets were distributed. The spectators were upset; some shouted; some shook their fists. B was removed from the court bodily by C, a police constable, with whom he went quietly. As he was being led away some of the crowd showed hostility to him and attempted to strike him. He was charged with having used insulting behaviour whereby a breach of the peace was likely to be occasioned. The magistrates upheld a submission that the behaviour, although annoying, was not insulting, and dismissed the charge. C successfullv appealed to the Divisional Court ([1972] 2 All ER 1, [1972] 1 WLR 484), but the House of Lords overturned their decision and restored that of the magistrates.

 

Four of their Lordships said that ‘insulting’ was a straightforward word in ordinary usage. They deprecated the attempt which the Divisional Court had made to define it. They found it impossible to say that the magistrates had made a decision which could not properly have been reached on the evidence: see Lord Reid, Lord Morris and Lord Kilbrandon ([1972] 2 AH ER 1297 at 1299–1301, 1303, [1973] AC 854 at 861–863, 867). Lord Diplock gave no reasons. Only Viscount Dilhorne touched on the question of intent. He said ([1972] 2 All ER 1297 at 1302, [1973] AC 854 at 86866):

‘Unless the context otherwise requires, words in a statute have to be given their ordinary natural meaning and there is in this Act, in my opinion, nothing to indicate or suggest that the word “insulting” should be given any other than its ordinary natural meaning. The justices had two questions to decide; first, was the appellant’s behaviour insulting and, secondly, if so, was it likely to occasion a breach of the peace. Both were questions of fact for them to decide. In considering the first, it was relevant for them to consider whether the behaviour was such as to indicate an intention to insult anyone, and if so whom; and if the justices in this case did so, they may well have concluded that the appellant’s behaviour did not evince any intention to insult either players or spectators, and so could not properly be regarded as insulting.’

 

The question of intent was not material to the decision in Brutus v Cozens. The decision was simply that, whatever annoyance, resentment and anger had been occasioned by B’s behaviour, no one, on any ordinary use of the word, had been insulted; nor was anyone likely to have been insulted. So there had been no ‘insulting behaviour’. There was therefore no need to consider whether an intention to insult was required.

 

Having regard to the tenor of the 1936 Act as a whole, we believe that no such intent need be proved. What is required is conduct of a threatening, abusive or insulting character which is likely in the circumstances to occasion a breach of the peace. If the conduct in question is of this character it does not, in our judgment, matter whether anyone feels himself to have been threatened, abused or insulted. Insulting behaviour does not lose its insulting character simply because no one who witnessed it was insulted, any more than it would lose its liability to provoke a breach of the peace merely because no one who witnessed it broke the peace. In Ballard v Blythe (3 November 1980, 

[1982] 2 All ER 583 at  588

unreported) the appellant insulted, abused, threatened and spat at a man who, unknown to him, was a headmaster, and who reacted with an unusual degree of self-restraint. In dismissing his appeal against conviction Donaldson LJ said:

‘… the court has to find the circumstances in which the conduct takes place and to consider the question posed by the statute: is this conduct such as in inherently likely to occasion a breach of the peace? … the general test is: what is the natural and probable result of the conduct?’

 

Whether the defendant is addressing an audience which he knows has special susceptibilities, a breach of the peace may be the natural and probable result of behaviour which would not provoke an audience not having this susceptibility in such a way.

 

It is to be noted that the words of the statute are ‘whereby a breach of the peace is likely to be occasioned’ and not ‘whereby a breach of the peace is liable to be occasioned’. This is a penal measure and the courts must take care to see that the former expression is not treated as if it were the latter.

 

The Act does not make it criminal to use offensive or disgusting behaviour whereby a breach of the peace is likely to be occasioned. It requires, in the circumstances material to this case, ‘insulting behaviour’. What then is an insult? We do not propose to attempt any sort of definition, particularly after the speeches in Brutus v Cozens, but some consideration of its characteristics are necessary in the light of counsel’s submissions that behaviour of the type here is not insulting.

 

One cannot insult nothing. The word presupposes a subject and an object and, in this day and age, a human object. An insult is perceived by someone who feels insulted. It is given by someone who is directing his words or his behaviour to another person or persons. When A is insulting B, and is clearly directing his words and behaviour to B alone, if C hears and sees is he insulted? He may be disgusted, offended, annoyed, angered and no doubt a number of other things as well; and he may be provoked by what he sees and hears into breaking the peace. But will he be insulted?

 

One must take care not to become too analytical or too refined about these things, and we are not beginning to attempt either to define or to lay down any sort of principle, but these considerations may help to clear the mind before one asks oneself whether homosexual behaviour of the type in question here is really properly described as ‘insulting’.

 

At one stage, a third person did come in, but he, so far as we know, saw nothing. So he was not insulted, nor was he likely to have been. Had further people come in the position would no doubt have been the same. If, by chance, anyone had surprised the appellant and seen what was happening, we think it would be difficult to say that he would have been insulted.

 

The appellant’s conduct was aimed at one person and only one person. He obviously hoped, and after a little while would presumably have believed, that the person to whom it was directed was another homosexual. Whatever he was trying to do, he was not trying to insult him. Whatever another homosexual would have felt, he would not, presumably, have felt insulted. In fact the second person was a police officer. Was he insulted? He had gone there in plain clothes to catch anyone whom he saw doing this sort of thing, and he caught one. It seems to us quite unrealistic to say that he would have felt insulted. Suppose, as was possible, that the person to whom the behaviour was directed had been a heterosexual using the lavatory for its proper purpose. He would almost certainly have felt disgusted and perhaps angry, but would he have felt insulted? The argument that he would is that the behaviour was tantamount to a statement, ‘I believe you are another homosexual’, which the average heterosexual would surely regard as insulting. We regard this as the only basis on which the behaviour could fairly be characterised as ‘insulting’. However, that did not happen in this case. The only person importuned, for that is what it comes to, was the policeman, but the person importuned might very well have been an ordinary heterosexual using the lavatory for its proper purpose. On this basis we think that the behaviour can fairly be regarded as 

[1982] 2 All ER 583 at  589

 

potentially insulting, and we would regard this as sufficient to give it the description ‘insulting behaviour’.

 

For this reason, and this reason alone, we are not prepared to say that the court was in error in making a finding that there had been ‘insulting behaviour’. And, as has already been indicated, we do not think the court was prevented from making this finding by the fact that the appellant did not intend to insult, nor by the fact that no one was insulted, nor by his having taken steps to ensure that no third person saw what he was doing. This is not to hold that such a finding was inevitable. It was for the court to decide on the whole of the evidence. We could only interfere if it had been demonstrated that the finding must have been wrong.

 

But was a breach of the peace likely to result? Neither the appellant nor the police officer was likely to break the peace. No third party was likely to have seen. One came in and the appellant desisted. Had others come in he would no doubt have done the same. It is true that someone might have caught him unawares and there must have been a possibility that such a person might have gone so far as to cause a breach of the peace, ie to use or threaten violence, but we think counsel for the appellant is right in saying that on the evidence, as we assume it to have been, no court could have been sure that this was likely. In our judgment the court can only have reached the conclusion that it did by treating ‘likely’ as if it had read ‘liable’, which it does not.

 

We therefore quash this conviction.

 

Valentine v Lilley

 

On 12 August 1981 the appellant was convicted by the Mansfield magistrates of the following offence, that he—

‘on Monday, 6th day of April, 1981 at Titchfield Park public toilets, Nottingham Road, Mansfield, did use certain insulting behaviour whereby a breach of the peace was likely to be occasioned. Contrary to Section 5 of the Public Order Act, 1936, as amended … ‘

 

The justices found the following facts. At 1.20 pm on 6 April the appellant entered the lavatory. About 15 minutes later Pc Beck in plain clothes entered and stood at the urinal next to him. Almost at once the appellant turned towards him, smiled and masturbated. He was unaware of the true identity of the police constable at the time. No one else was present. He was then arrested.

 

The appellant argued that his behaviour was not insulting, because it was not insulting to the police officer, and that, as violence was unlikely, it could not be said to have been likely to provoke a breach of the peace. The respondent argued that the behaviour was in itself insulting and that whether it had this character or not could not depend on the unknown identity of the person to whom it was addressed. Further, a mere disturbance, short of violence, amounted to a breach of the peace, and therefore the conduct was likely to provoke a breach of the peace.

 

The justices found the behaviour to have been insulting. Their opinion continues:

‘In deciding whether a breach of the peace was likely to be occasioned, we took the view that, as the toilets were a public place, we were entitled to take into account the likelihood of a member of the public either entering or being present instead of the police officer in the toilets and his probable response when he encountered the actions of the appellant. The mere chance that the actual audience consisted solely of a police officer did not preclude us in our opinion from considering other possibilities. We therefore concluded in view of all the circumstances of the case, there was a strong probability of a breach of the peace occurring whether by way of a disturbance or out of violence.’

 

Three questions were set out in the case. Only the second need be read. It is: ‘Is a “breach of the peace” restricted to acts of violence?’ The other two questions have been canvassed in the other case, namely whether or not, in deciding whether behaviour is 

[1982] 2 All ER 583 at  590

 

insulting, and whether a breach of the peace is likely, it is proper to take into account the reactions not only of the person to whom the behaviour is addressed but of others who might have observed it.

 

Counsel for the appellant was not disposed to challenge the finding of ‘insulting behaviour’, but, for safety’s sake, he adopted the arguments of the appellant in the other case. For reasons which will already be apparent it is impossible for this court to interfere with the finding of ‘insulting behaviour’.

 

Counsel for the appellant concentrated his argument on the justices’ finding that there was a strong probability of a breach of the peace occurring whether by way of a disturbance or out of violence. As counsel for the respondents concedes, the justices were in error in thinking that a mere disturbance not involving violence or a threat of violence could amount to a breach of the peace. The matter is put beyond doubt by the remarks of Watkins LJ, reading the judgment of the court in R v Howell [1981] 3 All ER 383 at 389, [1981] 3 WLR 501 at 508:

‘… we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done.’

 

A little later, after reciting a passage in 11 Halsbury’s Laws (4th edn) para 108, he went on ([1981] 3 All ER 383 at 389, [1981] 1 WLR 501 at 509):

‘The statement in Halsbury’s Laws of England is in parts, we think, inaccurate because of its failure to relate all the kinds of behaviour there mentioned to violence. Furthermore, we think the word “disturbance” when used in isolation cannot constitute a breach of the peace. We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance.’

 

We have also been referred to some remarks of Lord Denning MR in R v Chief Constable of Devon and Cornwall, ex p Central Electricity Generating Board [1981] 3 All ER 826 at 832, [1981] 3 WLR 967 at 975:

‘There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker, by lying down or chaining himself to a rig or the like, he is guilty of a breach of the peace.’

 

These comments were not indorsed by either Lawton LJ or Templeman LJ. As the passage cited shows, the case was concerned with facts quite unlike those here. In the present case there was of course no question of the appellant preventing anyone from carrying out his lawful work.

 

In fairness to the justices it is only right to say that the report of R v Howell would not have been available to them in either the Weekly Law Reports or the All England Law Reports at the time the matter was before them, and they may very well have relied, in part at least, on the inaccurate statement in Halsbury’s Laws of England. Nor could they have known of the remarks of Lord Denning MR.

 

The conviction must be quashed. Had the respondent so asked we would have been obliged to remit the case to the justices with a direction to continue the hearing by determining the likelihood of a breach of the peace in accordance with the law as declared by this court, but we have not been asked to do so, the respondent recognising that this incident occurred nearly a year ago and that the appellant will already have suffered severely by the publicity surrounding his conviction.

[1982] 2 All ER 583 at  591

Footnote

Where the words of a statutory provision aptly describe the conduct complained of there can be no objection in law to framing a charge under that provision. But these cases demonstrate the difficulties which can sometimes occur when behaviour is charged under a provision which was never designed to deal with it. Each case will depend on its own facts, but it seems to us that, if proper attention is paid, as it must be, to the word ‘likely’ in the phrase ‘whereby a breach of the peace is likely to be occasioned’, s 5 of the Public Order Act 1936 will, more often than not, prove to be an inappropriate charge in the case of homosexual activity in public lavatories.

Appeals allowed. Convictions quashed.

 

Solicitors: Hawley & Rodgers, Nottingham (for the appellant Parkin); Temple Wallis, Nottingham (for the appellant Valentine); D W Ritchie, Nottingham (for both respondents).

 

Jacqueline Charles Barrister.

 

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