In the Media

Mind your language, although we have heard it all before

PUBLISHED December 8, 2011

Courts cannot find people guilty for using swear words that features in the conversations of many police officers and in many other contexts

Last month Mr Justice Bean allowed an appeal by a defendant who had been convicted for swearing at a police officer. The Metropolitan Police Commissioner, Bernard Hogan-Howe, expressed surprise and disappointment: ?It is not acceptable to be sworn at for anybody, so why would it be any more acceptable for a police officer?? The answer is that it may not be acceptable, but it is not necessarily a criminal offence.

In March 2009, in North London, police officers decided to search Denzel Cassius Harvey, aged 20, and some friends who they suspected were in possession of cannabis. Harvey objected: ?F*** this man, I ain?t been smoking nothing.? When the search revealed no drugs, Harvey expressed his feelings of vindication: ?Told you, you won?t find f*** all.? When the police officer used his radio to see if any of the group was wanted for other offences, and asked Harvey if he had a middle name, Mr Harvey replied: ?No, I?ve already f***ing told you so.?

Harvey was arrested for breaching Section 5 of the Public Order Act 1986 that makes it an offence to use threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress. He was convicted by the magistrates and fined £50. He was acquitted on a further charge of assaulting a police officer in the struggle that followed his arrest.

In allowing the appeal to the High Court, Mr Justice Bean commented that ?such language is familiar to most courts?. He noted that a search on the Lexis legal database produced more than 2,000 results for cases in which the words ?f***? or ?f***ing? appear. He explained that Parliament has not made it an offence to swear in public. As Lord Justice Glidewell said in a similar case in 1989, ?boredom? was the sole effect that such language of itself is likely to have on police officers, who ?will be wearily familiar? with swear words.

The only people within earshot of Harvey were other young people who gathered round to hear the exchanges, and there was no reason to think any of them felt harassed, alarmed or distressed. There was no evidence that there were any neighbours, or passers-by, who could have heard the discussion.

Whether the prosecution can prove that such language was likely to cause harassment, alarm or distress depends on the precise context, in particular the intonation, any physical gestures, who is present and in what location. Mr Justice Bean emphasised that he was not ruling that it is never a criminal offence to swear at a police officer. Like so much in the law, it all depends.

In 1971, the US Supreme Court allowed an appeal by a defendant convicted for wearing a jacket bearing the slogan ?F*** the draft? in the Los Angeles County Courthouse. Mr Justice Harlan said that ?while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre?, it was nevertheless often the case that ?one man?s vulgarity is another?s lyric?.

The complaint by the Daily Mail columnist Quentin Letts last Saturday that Mr Justice Bean is ?a champion of vulgarity? suggests that either he has not read the judgment in Harvey?s case or he cannot understand it.

We may regret Denzel Harvey?s bad manners and the poverty of his language, for which our education system is much to blame. But courts cannot find people guilty of a criminal offence simply for using a common vulgarity, indeed one that features in the conversations of many police officers, and in many other contexts.

When Penguin Books was unsuccessfully prosecuted in 1960 for publishing D.H. Lawrence?s novel Lady Chatterley?s Lover, the prosecutor told the jury in his opening speech that ?the word f*** or f***ing appears no less than 30 times?. If Philip Larkin?s poem can lament that ?They f*** you up, your mum and dad?, Harvey is entitled to express a similar view of the police officers with whom he came into contact.

This is not to dispute that the word f***, and many other words linked with sex, retain, for a large proportion of the community, a force that causes them to recoil with distaste, sometimes shock. No doubt for that reason, the words are not printed in full in this newspaper. Nor would judges tolerate a witness, or indeed a barrister, using such language in court to emphasise a point (?in my respectful f***ing submission?). But even for the law, a deaf ear may be the appropriate response. James Comyn, in his 1993 book of reminiscences, Watching Brief, recalled that at the Old Bailey a defendant, when called upon to plead, told the judge to ?f*** off?.

The judge responded: ?That, I think, amounts to a plea of not guilty.?

The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords