Warning: There is strong language in this post. It isn’t blanked out. This language is out there and in daily use. We cannot hide from it.
It was around 9.30am. The rush hour was over and I had parked up in a small access road to some flats. I brought my pocketbook up to date and then focused my attention on the traffic on the road in front of me. Soon enough there would be an old wreck, an overloaded van, a mobile phone or a seatbelt…. There it was. A driver goes past in his car with no seatbelt. I pulled out and followed him down the road to see him turn left into a side street. I continued to follow but before I could try and stop him he turned onto the driveway of a house. I pulled up outside the address and got out of my car. The male, about 6 foot but at least twice my physical size had got out and was walking to the front door.
“Excuse me…”
This was all I needed to say. He went off like a bottle of pop. He came down the drive and out onto the street. He had clenched fists and came at me. “What the fuck do you want? You can’t do fuck all. I’m on my drive.”
I pointed out his seatbelt offence whilst backing off from him. “I was wearing it. Prove it. You’re all lying cunts.”
This was at the top of his voice. Some mothers were walking back from schools or going shopping. Curtains were twitching. I loosened my gas canister and flicked the release to my cuffs. I asked him to calm down whilst I spoke to him. He continued to remonstrate and wave his arms around. I felt threatened. I called for backup. “Come on then copper. What you going to do about it you little fuck in a uniform.” he walked away from me back toward the house. I followed him. “I still need to speak to you about your seatbelt. Don’t walk away.”
He turned and came back toward me. “Fuck off. You can do fuck all. You’re all a bunch of twats.” I told him to stop swearing and calm down or he would be arrested. This had no effect. I was again under pressure and still had no back up. If this chap on the verge of violence actually used it I’d be in trouble. He continued to come at me shouting similar phrases and expletives. Then an opening. He put a hand out toward me as though to grab at me. My cuffs were out like lightning and my bottom cuff wrapped around his wrist and snapped into place. Just for a fraction of a second he stopped and looked at me. He then smiled as though he had the measure of me and I was going to lose. “What the fuck do you think you’re going to do with that wanker?” My only reply was “This.” I put my confidence in my training pushed the top cuff away whilst holding the bottom and then span around dropping to one knee as I did. The pain in his wrist and my motion were too much. He hit the deck like a sack of spuds. I had no need to worry any further. A detective in a plain car had heard my backup call and he was now with me.
The male was arrested for S5 public order and taken to the police station. Within two hours he was processed and released. He was the first person I issued a PND to as they had not long been introduced. He apologised profusely for his behaviour. I led him out to the front door of the nick and before he left I stopped him. “I have to let you know something” I said to him. “When I pulled up outside your address I had already decided to simply advise you about the seatbelt matter. If you hadn’t gone off on one that would have been the end of it.” The look on his face said it all. He knew he’d been an idiot. He shook my hand, apologised again and left.
It’s difficult to relay in text the full effect of this incident. It was dealt with as an offence contrary to s5 of the Public Order Act. Those of you with personal experience will think that s4 was probably more appropriate. However, considering his previous history, instant remorse and ease of processing we opted for the lesser offence.
What this occurrence identifys is that police officers can be caused harassment, alarm and distress.
In the Daily Telegraph and across Twitter yesterday there was wide condemnation of Mr Justice Bean and his decision to allow an appeal for a s5 offence. The officers were swore at during a drug search and arrested for s5. He stated that the word “fuck” was such common parlance that officers were unlikely to be distressed by it and neither were the group of teenagers standing nearby. This defence is written into the legislation.
(3)It is a defence for the accused to prove—
(a)that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress
There is also some case history we can refer to. DPP v Orum and DPP v Southard.
The upshot of both of these cases is that officers can be caused harassment, alarm and distress. Officers should be stoical and our tolerance should be greater than a normal member of the public but we are susceptible.
The conclusions illustrated by both cases is that the decision as to whether the offence is complete is a question of fact to be decided in each case by the magistrates. They may take into account the familiarity which police officers have with the words and conduct but the surrounding circumstances are just as important.
The judgement on the recent case is, I understand, not yet available. No doubt as more information becomes available the decision will seem more laudable or quite possibly the complete opposite.
There is an underlying issue though. That is the selective attitude we have to profanity. I never heard my parents swear. I can remember the shock when I first overheard my Dad swear when talking to a work colleague. The courts are ready to accept that police officers are used to such language but just because we are does not make it acceptable.
Judges and magistrates preside over cases where foul language is included. Granted, it is in controlled evidential format but they are used to it. Yet the defendant who stands in the court and tells the DJ he is “fucking wanker” is likely to find himself in the cells for contempt. A phone caller to a radio or TV program who then starts swearing will be cut off. We clearly wont tolerate it in any way at certain levels.
There has been a gradual release of standards in society to the point that such profanity is commonplace. Yet whilst we accept it on one hand we deplore it on another. Ignoring the mixed message this sends out there still has to be a line.
I will question quite robustly police officers who bring such offences into custody. I have to be satisfied the arrest is lawful. In 99.9% of cases they are but I have been known to refuse detention.
There are some people who know no other way to speak. Conversely, as a police officer we may have to use profanity to get through to such people. In public order cases the whole facts of the case have to be considered but one fact remains constant.
Police officers can be caused harassment, alarm and distress depending on all the circumstances. Anything wider and more relaxed than this undermines basic low level public order in our towns and cities and separates police officers from everyone else as a free for all target of abuse.
You as a citizen wouldn’t accept it. We too are citizens and whilst we may see more of it than most folk it doesn’t mean we should just take it on the chin. That would be crossing the line.
I think the point you make about this language being seemingly acceptable in some areas but not in others is excellent. Context is what has to be considered in all cases; swearing at someone just because they are wearing a uniform should never be seen as acceptable.
I think instances like this are becoming more frequent, something relatively minor blown up by complete lack of respect shown towards police. As you mention, it’s been case for while that we shouldn’t be offended by general swearing as part of job. I would hope people that clearly wish to try and intimidate officers by their words and actions will always end up in custody. In recent instances for me it is the actions rather than words that are issue. I would never dream of approaching officer kicking off for any reason. Shameful. Good point well made though sarge.
This Friday I’m due in court to give evidence for a very similar situation.
I worked very closely with British Transport Police in my last role. One evening whilst at work at one of losing busiest train stations u witnessed a passenger being very abusive and aggressive. The police were called and he was calmed down an given a warning.
He suddenly flared up again, whilst trying to calm him down, the man decided to lash out and punched a concrete column. He broke his hand in 3 places. He was issued with a PND.
Unfortunatley he doesn’t feel his behaviour was inappropriate under s5 and has appealed/disputed his PND.
It’s now going to court.
I hope the judge throws the book at him.
In my opinion swearing or abusing any public official is not to be tolerated. On this occasion I think the learned Judge got it wrong. I also think the HO is wrong to consult in removing offence.
S54 of the Metropolitan Police Act 1839 & S28 of the Town and Police Clauses Act 1847 are both perfect for dealing with simple profanity and no need to demonstrate HAD.
I’m beginning to think that the swearing is besides the point; it is the tone, attitude and aggressive intent that is key. I’m always telling my teenagers not to swear around the house – my 13-year-old in particular struggles to differentiate the playground from the front room. However, I only really clamp down when they use foul language at each other in a sibling dispute. That’s why legal judgements when the words are merely set out on the page can be misleading when taken out of context
Firstly, I work on the railways out of London. Irrespective of the sitatuion, if I get foul language used towards me, I give the person one warning only. After that, I will refuse to deal with that person any further. And if they continue with it, or I feel threaten in any way, then I call for the police. No person should be put into a sitation where they feel threatened for doing their job correctly.
What annoys me is something that you quite rightly pointed out in your article. Why is it that the judges/magistrates won’t accept swearing in courts, but often seem to think it is acceptable in other circumstances?
Now I will admit that I don’t have the best knowledge when it comes to how various Laws are made or enforced, but I always thought it was as followed (please correct me if I am wrong):
The Law is created by the Politicans.
The Law is enforced by the Police.
The Law is interpreted by the courts.
Have a read up on the doctrine of Separation of Powers.
To avoid corruption, those who make, enforce and interpret the law must be independent of each other; the legislature creates laws, the executive governs, and the judiciary interprets and applies law.
It works in theory, but there is occasional overlap (e.g. the now defunct House of Lords, who were both judiciary and legislature, and those MPs who are also government ministers are part of both the legislature and executive).
It’s kinda interesting, the English legal system’s history and theory. One of only 3 countries who’s legal system isn’t based on a constitution.
I think appeals like this are successful because we forget to add personal feelings, shocked passers by and impact factors in statements. It does not help that the arrest in the case was on the back of an unsuccessful S23 where I’m sure tolerances were then fairly low. Everything in context. I’ll still lock em up with me as the only witness and you can be sure it will get detected if I have made the decision they have crossed the line. I’m pretty thick skinned for foul language alone. Good eg boss.
Sgt rather, you can tell I’ve been reading gadget.
What would have happened if someone had sworn at the Judge ? ( Contempt of court ? )
recently i was in a magistrates court – a man had been brought in for breaching his bail just a few days short than his sentence date. his psr was ready (unusual i know) so i printed if off and handed it to the DJ. Now the bloke was up for harrassing his elderly grandfather who was in sheltered accommodation, he would regularly pressurise the elderly man – turning up at all hours to part with money to fund his gambling habits – the poor old fella used to sit in the dark so it always looked as tho he was out as he was terrified of the harrassment – complaining to the police was an absolute last resort and caused him no end of stress.
To cut a long story short, the DJ sentenced there and then – the psr suggested he needed help for his gambling addiction but as he’d reoffended on bail and bearing in mind the victim, there was only one place the defendant was going – the DJ was absolutely furious.
Well he kicked off good style – called the DJ a fuckin this that and the other – got personal too about his weight etc. The judge told security to take him down and just laughed when he’d gone and said ‘ i could’ve done him for contempt of court aswell but what’s the point?
I was just a bit stunned at his reaction – if judges dont send out a message no wonder other CJS agencies arent going to get the respect they deserve and need to do the job.
You probably know the old story about an angry defendant who has been sentenced to 4 years. As he’s taken out of the dock he calls the judge a c***. Judge says: ‘Stay there a moment Mr X. Now, when I leave here I’m going to play a round of golf and then go home, where my wife will have a gin and tonic waiting for me. We may go out to dinner. You are going to gaol. Who’s the c***?’
no, i’d not heard that – it gave me a giggle – thanks :@)
Wise words… It is wrong to swear & be abusive but there is a question of context.
I spoke to someone only today in a non confrontational situation peppered there speech with f this & f that. I wasn’t offended- I just saw them as foul mouthed & stupid.
Conversely someone can be say something in such a manner it’s deeply insulting even if the language is not too bad.
Submitted on 2011/11/23 at 10:23
If you’re here for the abuse examples, which are great by the way, skip this. Just wanted to add my fourpenneth to the issue.
First, Thanks Custody Sergeant for your piece – and I think this is a good eye opener for people to remember what you boys and girls do for us on a daily basis, thank you.
I also feel that it has nothing whatsoever to do with Mr Justice Beans decision and that The Telegraph reporting, and this, are sending out a misleading message as to Orum, and the judgements since.
Quite simply, every example given on this page, and the author’s original post, are clearly offensive comments made with an intention to cause offence and remain, as they always were, criminal offences.
That officers don’t always arrest because of them is a credit to them, that they don’t simply react and punch the abuser in the face, more so.
But the situation described in The Telegraph is very different, the swearing described there was ‘passive’ rather than aggressive, used for emphasis rather than to alarm and distress (as all the examples here clearly were).
My view is that to talk to anyone simply doing there job in this way is wholly unacceptable. If they were accessing NHS service, I’d expect them to be asked to leave, if they were entering through security at a court or airport, refused that entry. But to criminalise a person for doing so is a completely different thing.
Now the difference I realise for officers is that they don’t have the luxury of withdrawing their service. The very fact the service may not be wanted is often a symptom of why it needs to take place (here it was a search in the street I understand).
But therein lies the problem. The state is, no doubt through suspicion on this occasion rather than under s.60, accosting (quite rightly, don’t get me wrong) a civilian in the street. It is forcing him to comply with something he doesn’t want to do and it is, I would feel (being a white middle class male, like most others of my ilk, not something I’ve been through), a degrading and humiliating process to go through.
We know in this case it led to nothing being found.
Still not, in my view, a reason to swear in the street. But people do swear in the street, and will often do so without seeking to alarm or distress anyone.
The need for police to be able to use their powers justifies the arrest of those who obstruct that use, or those who cause alarm and distress.
There is no concurrent need for the arrest because a person isn’t showing you respect as you do it, and neither should there be. The criminalisation of a person should be for behaviour which warrants it. The beauty of our system is that it recognises this as a balancing act, and allows for cases to be decided on a fact specific basis. Of course this does mean that there will a subjective line created, and sometimes different people will have different views of where that line should be placed.
But where it is clear that the law (not the judge) will not support an arrest in a set of given circumstances, and yet people are being arrested for such behaviour, it is clearly right that a judge should state that.
This blog, I feel, whilst being a really insightful and useful reminder of what the police do for us, unfortunately adds credence to the dishonesty of The Telegraph which can only lead to making your job harder (I’m not cynical enough to think that this is just an attempt to increase police powers), letting those who don’t respect the police think it’s ok now to seek to alarm and distress them, when that patently isn’t the case.
I don’t usually comment on blogs, so please excuse the length of this post. I just found The Telegraph piece very disappointing and wanted to give what, I think (i’m often wrong), is a more balanced explanation of the judgement.
Thanks for the opportunity to do so.
@CrimeCounsel
This comment is cross posted from my other article that gives examples of the behaviour police officers face on a daily basis. It quotes this blog so it should be here also.
First off all thank you for a rational and objective reply. I will always engage in sensible debate on this blog and I know I’m not right all the time. I have had to decline some comments recently by those who simply wish to use it as a platform for their own agendas and that will not be tolerated.
So to your comment. You are right to distinguish the difference between casual usage of profanity and that which is more directed at the officer with additional aggravating factors. The comments on the later article are clearly something officers should not have to tolerate. They are way above and beyond the comments reported in the recent case but the idea was to give people an idea of the degree to which some people will sink. The comments speak for themselves.
These sort of comments normally follow arrest for other matters and are yelled from the back of the van or directed at me at the charge desk. That said it is not uncommon to have them hurled at you on the street. In the case of the latter I would generally expect an arrest. In the former a further arrest is unlikely. It is generally water off a ducks back and the comment is ignored. It is generally the ale that is talking and the DP normally apologises the next day. There are those of course who simply despise the police. They may never mean to carry out their threats but the intention to H, A, D, antagonise, taunt and a general desire to provoke a response is clear. It is to officers credit as you say that this challenge is never risen to.
In all my time in custody I have only ever reverted to using my warrant number once. A serious and habitual sex offender with a history of breaking into homes and raping lone occupants. He was a risk and I took no chances. Like most officers, our wives, partners and family are home alone when we are working night shifts.
You refer to the passive quality of the case Justice Bean has dealt with and that this is very different to the comments on my later request. You’re right. But I do think my post is quite balanced and recognises the significance of Orum and that words, conduct and all surrounding circumstances have to be considered. I even point out that the case will become clearer when the full facts are released and we don’t rely entirely on The Telegraph article. As such I don’t personally believe it adds credence to the papers article.
Whilst again I believe that all surrounding circumstances have to be taken into account there are difference. The DJ example is perfect. The DP is in the dock, (perhaps a secure one) and hurls abuse at the DJ. This in many cases is passive as there is little to no chance of him vaulting the bench and thumping the DJ. Yet they will often find themselves cooling their heels in the cells. The hospital/airport cases can often lead to arrest as the staff won’t tolerate the abuse, the person won’t leave and we get called to remove them. They kick off and arrest follows. It’s their later actions that lead to the arrest that stem from their initial behaviour. I would agree that this is an acceptable solution but would refuse detention if based on the initial grounds only and they left peacefully.
I’m not for criminalising people unnecessarily. In fact I had a big argument with a DI only a week ago about an NFA decision I took that he wanted a caution for. Whilst he is still in a figures mindset I come from the leadership angle of not doing the right thing but doing what’s right.
It has to be said that we are all different and one person reacts differently to the next including police officers. Custody Sgts are guardians of excellence and from an independent stance have a duty to stop nonsense cases in their tracks.
The fact still remains though that police officers take the brunt of and tolerate some hideous abuse but do not react to it where others would be up in arms demanding action.
I confess that your abuse thread, which I came across, gave me an opportunity to get off my chest my thoughts on the Telegraph article.
As such I certainly retract “I feel” and replace with “I fear” – and I certainly didn’t mean to suggest that your post was not balanced, therefore the “more” which sneaked in at the end also has to go.
What is imperative though is that the the public are not mislead (and I don’t suggest this was your intention, or that a close reading of your post would achieve that) in relation to the Court of Appeal’s judgement.
The message is that swearing can lead to arrest, just as it always has, where it obstructs an officer in his duty or it is offensive, in that it can be expected to cause alarm or distress. Anything less than that might still be unacceptable, but what is unacceptable does not make it criminal, and neither should it.
The message is also however, that you should not expect to be arrested for the way you express yourself, and that officers (or these officers, these CPS lawyers and the magistrates concerned it appears!) need to remember that what they find unacceptable, or disrespectful, has nothing to do with them being justified in using their coercive powers.
And as such, Mr Justice Bean (appears) to have been quite right to remind us all of that fact.
Thanks for the reply Sarge. And of course, much respect.
I agree whole heartedly about each case should be a looked at on a case by case analysis. It is entirely possible to be alarmed as a police officer…..we’ve all felt the adrenaline rush when things get a little more volatile regardless of size or gender of the officer.
I would just point out that you state that, as a custody sergeant, you state the following, “I have to be satisfied the arrest is lawful.” You are actually entitled to believe that the arrest is lawful, what you do need to determine is whether the arrest is necessary as is further detention. It is a small but important difference.
Agreed. But where would I be if I deemed an unlawful arrest to be necessary? They go hand in glove.
A rare occurrence, although I have dealt with it myself….an original arrest may be unlawful but the resulting search provides evidence of an offence (class A in the case I refer to)…this subsequent offence is a lawful arrest but the first is not. You are therefore in your rights to allow subsequent detention which is necessary. Rare and awkward but not inconceivable and not the remit of the custody sergeant to review.
I totally appreciate that this becomes something of a “what if” and it isn’t my intent to make things awkward here, far from it, I just needed to point out the slight error in your posting in order to prevent confusion for others.
Unfortunately I have not been able to read the judgment of Mr Justice Bean and I believe that it has not yet been published which means I shall not focus specifically on the judgment of the Court or indeed the implications of it. Until such times as it has been published and I have had an opportunity to read the judgment and digest the content it would simply be foolish, reckless and irresponsible.
However, the matter can be discussed more generally. The idea that swearing alone should be a criminal offence or render a person liable to arrest is quite frankly a ridiculous one. Perhaps it was not in 1984 when the Public Order Act was passed, but in today’s Britain expletives are sadly part of the everyday language of a vast majority of people. Personally, I tend to avoid using expletives as far as possible, but like everyone one will escape every so often. Simply swearing in the presence of, or indeed at, a police officer should not make one liable to be arrested and all that this entails.
That is not to say that it is acceptable. The criminal law should not be used as a way of regulating standards of decency in public conduct except in the most exceptional of cases (the huge problem of sectarianism in Scotland being an example of where the criminal law can and should be used to achieve such an outcome). It does not, and should not, automatically follow that a person swearing should never contribute towards the completion of a crime. As with many things it is the context that matters.
In Scotland the common law crime of Breach of the Peace has been defined in such a way that a breach of the peace cannot be committed for simply swearing at a police officer. There are, in my view, two key decisions in that area. The most recent is Miller V Thomson (2009 S.L.T. 59) in which it was held that the language used could properly be regarded as mild, albeit rudely expressed, protest at what appeared to have been wholly unjustified harassment on the officers’ part. In this case the appellant had been part of a larger group which had largely dispersed, but a group f about 5 remained. In essence what happened was that the appellant told the officers that he had done “fuck all wrong” (if my memory of the case serves me correctly) and I believe that it was said more than once. In this case, which I believe is similar to that of the case before Mr Justice Bean, the appellant had in fact done nothing wrong at all. He was in essence protesting at what he saw to be unjustified police intervention. The appellant’s conviction was quashed by the High Court of Justiciary.
I believe that this is an entirely sensible route for the law to go down. The police must not be above challenge or even feel that they should be. The public should be able to freely challenge an officer if they believe they are acting in a way that they should not. It seems that whenever a person challenges “the authority” of a Constable that things begin to go badly wrong and it often starts with the reaction of the Constable. It may not be nice to hear expletives but if all that a person is doing is “gobbing off” in protest then that cannot, and should not, be criminalised.
That being said, it is a different matter entirely where those expletives are accompanied by other conduct. For example if an individual was to get right into the face of an officer or to make some kind of verbal or physical threat against the officer then it arrest might well be an option (but of course should be a last resort).
It’s all about context. The swearing together with other conduct might result in an offence having been committed, but simply swearing on its own should not be an offence. The idea put forward by the Mayor of London and seemingly jumped on by the Police Federation that there should be a specific statutory offence for swearing at a police officer is quite frankly a moronic suggestion. It would appear that much of the comment and response has been based entirely upon the way in which a newspaper has portrayed the decision. Commenting without having read the judgment in question is rather difficult and one cannot really say that the decision was wrong until one has had an opportunity to read the reasoning behind a decision. It wouldn’t be the first time that the media has picked up on an inconsequential line of sentence in a judgment and spun it so that it actually doesn’t reflect the judgment at all.
All that I can really say is that I await Mr Justice Bean’s decision with great interest. Once we have that then we will be in a far better position to assess whether it was right or wrong and what the likely impact of it will be.
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