Author: Micheal McKee MA (Oxon) is a trainee solicitor in his final seat in the Crime, Fraud and JR Department at Duncan Lewis.
In DPP v Distill D was charged with racially aggravated harassment alarm or distress contrary to s5 POA 1986. She was alleged to have shouted, whilst stood in her grandmother's back garden, "Polish f**king bastards, f**k off" and the words were overheard by her neighbours in the adjoining back garden.
A dwelling for the purposes of the Public Order Act 1986 (POA 1986) will generally exclude a garden bounded by a private fence. Such a garden is not a structure occupied as a person's home or other living accommodation for the purposes of the act. The exception from criminal liability in cases where the conduct occurred inside a dwelling, and the witness or complainant was also inside that or another dwelling applies to offences of fear or provocation of violence, intentional harassment, alarm or distress, and causing harassment, alarm or distress under POA 1986, and offences of acts intended or likely to stir up racial or religious hatred, contrary to the Racial and Religious Hatred Act 2006.
Recently, public order offences have accounted for a comparatively high volume of recorded crime. Whilst many lower level offences can be dealt with via way of a PND (fixed penalty administered by police) or otherwise diverted from prosecution, the DPP’s Guidance on Charging classifies racially or religiously aggravated offences as ‘hate crime’ that police do not have discretion to charge. The lack of police discretion is underlined by the Association of Chief Police Officers (ACPO) gravity matrix (re case disposal at police level) providing that a charge must be considered in racially aggravated cases. The CPS has reported on increasing the number of hate crime prosecutions to record levels in 2015/2016.
Whilst discretion remains with the police in classifying incidents at the investigative stage, the CPS and the police has agreed an extended definition of what constitutes a hate crime as follows: “Any incident/crime which is perceived by the victim or any other person, to be motivated by hostility or prejudice based on a person’s race or religion or perceived race or religion”. This goes beyond the statutory formula. In non-racially aggravated offences the ACPO Gravity Matrix leans towards charge in cases in which there is a risk of escalation, whichmay be identified in cases of close physical proximity. Police Operational Guidance envisages that there will be some circumstances in which other preventative measures may be used to tackle hate crime which obviate the requirement for a prosecution, which would include civil injunctions for nuisance and annoyance, which can also be applied by the Police for as a preventative measure in respect of potential anti-social behaviour established as likely on the balance of probabilities, and can have the power of arrest attached for breach of their negative requirements and prohibitions: CC Beds Police v Golding  EWHC 1875 (QB).
Police and prosecutorial discretion will influence how often perceived hate-related offending will be brought before the courts. CPS policy on prosecuting racial and religious hate crime emphasises that where hate crimes are concerned it is likely that the public interest test will be satisfied in the charging decision. "Race" includes race, colour, nationality (including citizenship) and ethnic origins. A substantive offence will still be committed where the defendant demonstrates mixed hostility, based on other factors apart from race or religion, or where the membership of a qualifying group is presumed. Current CPS policy recognises that national and international events can inflame tensions, and in applying their widened definition of hate crime (to include the views of anyone who regards it as such) once a case has been flagged as a hate crime and received by the CPS, policy dictates that the CPS will not remove the flag from their system other than in cases of administrative error, even where there is insufficient evidence to prosecute, which “signals the CPS commitment to treat all such crimes seriously and to accept the victim’s perspective[emphasis added]” and arguably goes further in allowing the views of “any other person” to effectively classify the incident in the first place. On a practical basis the broad, inclusive definition as to who can determine a crime as a hate crime avoids the need to specifically empower various levels of investigator and/or prosecution staff in a lengthy list; however, the lack of specific expertise required to determine hate crime may lead to problems in practice. Police operational guidance (College of Policing- Hate Crime Operational Guidance 2014) has identified the problem and deprecates allowing those without personal knowledge of either the incident or the complainant to dictate classification. However, the “other person” can be a witness, family member, member of an interest group or the allegedly affected group, a police officer or a member of police staff. The police have dedicated hate crime units which may address the expertise issue in practice.
Some problems of perception based recording are identified in police operational guidance. A distinction is drawn between perception based classification of an incident as criminal which can be the subject of factual error and reclassified as appropriate (as a hate-related incident), and perception of an incident as motivated by qualifying hostility which it would appear cannot. It is not until the section headed “secondary victimisation” when the question of reasonableness of classification is identified. This is addressed as follows: “It is immaterial whether it is reasonable or not for the victim to feel that way. The police are responsible for managing the interaction to ensure that the victim has no residual feelings of secondary victimisation which can result in a loss of confidence in the police service and a reluctance to report incidents in the future.” The guidance stops short of promoting malicious complaints as the aim of minimising secondary victimisation is based on reducing reluctance to report “incidents” which should have some evidential foundation. The shockwaves of the Stephen Lawrence enquiry still reverberate through the police guidance; it might be felt that the section dealing with malicious complaints pays too little attention to the problem of false or malicious accusations as it is focused primarily on accusations against public figures and minimising the harm to genuine victims with no guidance as to how to assess the hate related element of a complaint as potentially malicious in the first place.
To qualify as racially or religiously aggravated the words or conduct either can demonstrate hostility directed towards a particular person's religious or ethnic group at the time of or immediately before/after the substantive offence, or be motivated by hostility towards the same. The hostility being based on mixed factors does not stop the offence qualifying as racially or religiously aggravated, and a broad non-technical approach is preferred [R. v Rogers (Philip)  UKHL 8]. In motivation cases, it is at least conceivable that racist language may not be motivated by either race or religion even if hostility is otherwise demonstrated [R. (on the application of DPP) v Dykes EWHC 2775 (Admin)]; likewise, the mere usage of words ordinarily considered racist is not in itself sufficient to demonstrate racially aggravated motivation [DPP v Howard  EWHC 608 (Admin)].
In Distill her argument at first instance, that her garden was part of a dwelling, and that her neighbours’ garden was part of their dwelling, succeeded. Thus the exception in s5(2) POA 1986 applied; which provides: "no offence is committed.... by a person inside a dwelling and the other person is also inside that or another dwelling." Sentencing guidelines for public order offences recognise that the location of the offence may aggravate sentence; and whilst specifically envisaging an isolated victim, there is now nothing preventing disruption in one’s own garden by a neighbour aggravating sentence, with the perceived risk of escalation due to the on-going proximity of the defendant additionally aggravating. Notably, police operational guidance on hate crime identifies a reduction of repeat victimisation as one of its main aims.
Distill’s appeal by way of case stated turned on whether the magistrates had been correct to rule pre-trial that a dwelling included a private garden, which resulted in a successful defence submission of no case to answer. The statutory definition of a dwelling for the purposes of the POA 1986 provides at s8: ""dwelling" means any structure or part of a structure occupied as a person's home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose "structure" includes a tent, caravan, vehicle, vessel or other property or moveable structure""
The battleground on appeal was whether a garden could be termed part of a structure so used.
That a s5 offence can be committed in a private place supported the court not being bound by authority decided under the prior Public Order Act 1936, which turned on whether the conduct occurred in a public or private place [Regina v Edwards and Roberts  67 Crim App Rep 228]. The dwelling exception had been applied relatively restrictively in previous cases under the 1986 Act.
A police cell in a custody suite is not a dwelling notwithstanding that relatively personal activities that one may carry out in their home or other living accommodation may also be carried out there, [R v Francis (2006) EWCA Crim 3323]; the communal landing on a block of flats were not ‘part of a person’s home’ or ‘part of the structure occupied as a person’s home’ [Rukwira v DPP (1994) 158 J.P. 65]; and a laundry room has been held not to be part of the structure which was occupied as part of the appellant's home, as '(t)he laundry room was a communal room shared by those who lived in several homes in the building.... not.... part of the structure of any individual's home.' [LeVine v DPP  EWHC 1128 (Admin)].
The court noted that whilst [Atkin v DPP (1989) 89 Cr. App. R. 199] supported the view that 'the intention of parliament was to exclude domestic quarrels from criminal liability' even where the threat was about someone outside a dwelling and was spoken to someone inside a dwelling. The immediate case turned on whether an ordinary private garden was a structure or part thereof.
Arguments based on CPS guidance on a dwelling for the purposes of s9 of the Theft Act 1968 including a garden likewise carried little weight. The cumulative effect of recent case-law was that ordinarily the question as to whether a dwelling was a dwelling was one of fact. CPS v Hudson (2017) EWHC 841(Admin) established that there is no legal requirement for present occupation for a building to qualify as a dwelling, and thus attract higher maximum sentences under s9(3) (a) of the Theft Act 1968. In Hudson the court drew little assistance from the specifics of the provisions of s8 POA 1986. However, the court’s approach places the risk squarely on the burglar.
Reference to other statutory contexts was unpersuasive, in particular in s623(2) of the Housing Act 1985 and s63(1) of the Housing Act 1995, as in both acts the definition was inclusive and had specifically provided for adding a garden to the definition of a dwelling, an unnecessary step had the normal usage of the word dwelling included a garden.
In Distill Lindblom LJ stressed that there would potentially be gardens which could be regarded as qualifying structures or parts of structures; however, on the simple facts before the court a 27 metre long by 7 metre wide garden bounded by a private fence did not.
Distill further widens the distinction between a "dwelling" for the POA 1986 and the public/ private place distinction for various other criminal offences. A shared driveway had been held not to be a public place for offences under the Dangerous Act 1991, [Bogdal v R [ EWCA Crim 1], as was a private garden for the offence of having with him a bladed article in a public place [R v Roberts (2003) EWCA Crim 2753]. Nice distinctions abound such as in cases of having with him an offensive weapon in public in whichan upper walkway access to shared flats in a large estate, an effective through road, was a public place, [Knox v Anderton (1983) 77 CR App. R. 156] and drink driving cases in which the garden to a caravan park was accessible to members of the public on paying a fee and willing to abide by the owner's terms and hence was a public place,[DPP v Vivier (1991) R.T.R. 205].
The decision in Distill may not erode the purpose of the framers of the POA 1986 in that the conduct did not really amount to a domestic quarrel. Arguably, the offence of harassment provides insufficient protection in such cases, requiring a course of conduct. It can be argued that the decision goes too far in criminalising objectionable speech made in a context in which the maker had some reasonable expectation of legal protection; however, had the neighbours been just outside their own fence no argument on the dwelling exception could have been mounted.