I recently read with interest the Telegraph’s report that a 19-year-old man’s s.5 Public Order Act conviction was overturned by Mr. Justice Bean recently on the grounds that his use of swear words could not have caused the necessary ‘harassment, alarm or distress’ required to convict.
In response, Peter Smyth (chairman of the Metropolitan Police Federation) complained that ‘if judges are going to say you can swear at police then everyone is going to start doing it’.
In my opinion, Mr. Smyth has missed the point completely. I am presently dealing with a similar actions against the police case for a client who was stopped and searched by the police while going to the bank. My client suffers from panic attacks, for which he has received therapy. When approached by them, the police officers used demeaning, offensive and rude language, searched him and made him agitated. He was arrested for a breach of s.5 Public Order Act and forced to sit on the floor of the police transit van while they drove him to the police station. During the journey and at the station he suffered a full-blown panic attack. My client was detained and searched again, and only released once a fixed penalty notice had been issued.
The police say he used abusive language which justified the arrest and subsequent charge under s.5. I dispute this. My client’s alleged use of swear words was in the course of his everyday language (e.g. he is alleged to have said ‘why the f— do you pick on me I just want to go to the f—ing bank.’). He was not squaring up to or challenging the officers, quite the opposite as he was using distraction techniques to try to avoid having a panic attack.
It is the context of the swear words which is important, and the way in which they are used, that may give rise to the ‘harassment, alarm or distress’ necessary to secure a s.5 Public Order Act conviction. S.5 was never intended to allow easy prosecutions for those who use swear words in every day conversation, rather it was intended to deal with those who cause fear and upset; the type of people we would all try to avoid. The sooner the police recognise the difference the better.