For the last week or so the UK media has made a lot of noise about a recent judgment where the Queen’s Bench upheld an appeal by Denzel Harvey against his conviction for using threatening, abusive or insulting words within the hearing of a person likely to be caused harassment, alarm or distress, contrary to s 5(1) of the Public Order Act 1986. (It’s similar to Summary Offence Act 1966 s 17(1), but has a slightly different element of causing harassment, alarm or distress, rather than threat, abuse or insult.)

Here’s one example from the BBC, one from The Mirror and one from The Telegraph.

The case excited a lot of comment on twitter, until folks got their hands on what the judgment actually said rather than what the media reported.

F*** you, bad reporting by @_millymoo highlighted the real problem: the prosecutor hadn’t adduced any evidence of harassment, alarm or distress and so failed to establish an element of the offence.

In Harvey v DPP [2011] EWHC Crim B1, the Queen’s Bench said:

It is now time to answer the questions posed for the opinion of the court by the justices. In answer to the first question: as part of the reasons for their decision, they were entitled to conclude that the use by the appellant of the expletives I have outlined, a total of three times, amounted to abusive or insulting words or behaviour. But I find that there was no evidence in this case on which they could have concluded that either of the police officers had been caused or was likely to have been caused harassment, alarm or distress as a result of the use of those words.

Notably, the law in the UK doesn’t proscribe public swearing alone.

A number of cases establish that expletives such as “fuck” or “fucking” are potentially abusive words, whether the addressee is a police officer or a member of the public. But Parliament has not made it an offence to swear in public as such.

Had the police actually been alarmed or distressed the offence might well have been made out.

Where witnesses have given oral 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.