Plebs row: Andrew Mitchell can’t necessarily rely on police officers’ thick skins

So should Andrew Mitchell have been arrested and prosecuted for swearing at (or in the presence of) police outside No 10 Downing Street and allegedly calling them plebs?

Those who would love to see the stuck-up Tory toff (there, I’ve said it, and it’s on the record) doing time for his outbreak of incivility have had some difficulty finding any precedents for the offence of swearing at police officers. London Mayor, Boris Johnson, has certainly said they should be arrested, and one man is said to have been prosecuted for abusing police during the riots under Section 5 of the Public Order Act 1986 on “causing harassment, alarm and distress”.

But riots and the day-to-day hurly burly of a Cabinet minister’s life are two different things. As matters stand, the police are unlikely to arrest  people who abuse them – however irritating the odious oik might be who is doing the abusing.

And this is as it should be. To arrest people who insult the police would be a draconian power, criminalizing most ordinary people who find encounters with the police stressful, whether after a hard day of trying to keep a faltering Government on its feet or because you are young, black and you’ve been stopped and searched for the Nth time this year.

Crucially it has generally been held that the police have pretty thick skins and aren’t going to be moved to strike a man who insults them (as in “conduct likely to breach the peace” – see “Blemishing the peace” below) or feel harassment, alarm and distress – even when insulted by a here today, gone tomorrow member of Cabinet who thinks the world should jump to his every order. After all, most police are likely to hear plenty of this sort of thing – not least in their own canteens.

The case to look at is Harvey v DPP (2011) in which Denzel Harvey was one of several men being searched for cannabis. “Mr Harvey objected and said, ‘Fuck this, man, I ain’t been smoking nothing’. PC Challis told him that if he continued to swear he would be arrested for an offence under section 5 of the Public Order Act 1986. PC Challis searched the appellant but found no drugs, whereupon the appellant said, ‘Told you, you won’t find fuck all’.” Other searches proceeded and names were taken, then the officer “asked the appellant if he had a middle name and the appellant replied, ‘No, I’ve already fucking told you so’. The officer arrested Mr Harvey for the offence under section 5.” He was convicted and fined £50.

Police officers 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 on the facts – Mr Justice Bean

On appeal, however, the Section 5 conviction was quashed. The original magistrates had suggested that the words could potentially have alarmed people watching events from the flats and public spaces around and that the officers involved  “were likely to have been caused harassment, alarm or distress as a result of the use by the Appellant of the said words”.

However, there is no offence of swearing in public as such. The appeal judge, Mr Justice Bean, quoted Glidewell LJ in DPP v Orum (1989): “Very frequently words and behaviour with which police officers will be wearily familiar will have little emotional impact on them save that of boredom.”

Although the Act speaks of  the insulting or distressing words being said “within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”, Bean decided that, since there was no evidence of people actually having been caused alarm etc, by what would be pretty run-of-the-mill language, then the case was not made out.

On the issue of the police’s feelings, he said:

“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.”

On this reading, then, there isn’t a blanket rule that says police can’t feel harassed or distressed or alarmed by insulting language, but the bar is pretty high. They are tough characters who hear a lot of stuff.

The Daily Mail interpreted this judgment as saying police were banned from arresting people for swearing at them. But in fact that doesn’t necessarily get Andrew Mitchell off the hook. It might be argued that, given his position and his ability, presumably, to make life difficult for the officers who offended him and given the possibility that he may have used a word that is far more unusual, insulting and personal than the standard f-word (viz “pleb”), he may indeed have caused real distress to the police. The issue is the context as much as the words. One officer’s log also says onlookers were shocked. So evidence of real distress, the case of Harvey suggests, is a significant matter that could get the perpetrator into trouble. That is why the “pleb” issue is so crucial to Mitchell personally and legally as well as politically.

Blemishing the peace?

Before the Public Order Act, prosecutors sought a way round the limits of common law “conduct likely to breach the peace” with regard to its failure to protect the police from abuse. The essence of breach of the peace is that an offence has not necessarily occurred but one might occur as a result of someone’s behaviour. What he has done is “lawful but provocative” (Foulkes v Merseyside Police 1998). “The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established” (Percy v DPP 1995).

Arrest can take place as a precautionary measure. It stands to reason, though, that the police cannot be provoked into fighting unlawfully with abusive people so it is, arguably, possible to swear at a police officer without committing a breach of the peace.

Boris Johnson, however, made a good point when demanding arrest for those who swear at the police. The sort of disreputable character who would do that is likely to go on and do  worse things if not brought to book. “If people feel there are no comebacks and boundaries and no retribution for the small stuff, then I’m afraid they will go on to commit worse crimes.” He is suggesting they may become dangerously out of control.

The way round the “breach of the peace” problem was to bring perpetrators to a magistrate under the medieval law of “Blemishing the Peace”. One case, dimly remembered from 30 years ago at a north of England magistrates court, involved someone confronted by a police officer who then said “Miaow” to the officer’s police dog. Insulting though it was, the dog wasn’t bothered and it could not provoke unlawful violence from an officer, so “blemishing the peace” was used to arrest. This can result in a binding over by magistrates to keep the peace in future (with a recognisance) under the power found in the Justices of the Peace Act 1361. It is described in one court case thus:

“The magistrates have power under the Act of 1361 to bind over a person whose conduct has been contra bonos mores (in that it offends against the standards of decent behaviour current in contemporary society) in order that residents and users of the highway should not be troubled nor the peace be blemished by the behaviour of that person or those who behave or who are minded to behave as he has done. The defendant’s behaviour was such as to render him liable to be bound over under the exercise of this power. It was appropriate in all the circumstances that the appellant should be bound over.” (Hughes v Holley 1986).

The important point about this and the Mitchell case is that pretty well everyone thinks he has behaved, if not unlawfully, certainly “contra bonos mores”. By an oddity, the law as originally passed applied to persons of “good fame” who strayed from decent behaviour – most appropriate to the snooty Mitchell if not to the annoying plebs he often finds himself surrounded by.

Binding over orders may fall foul of the European Convention on Human Rights (Hashman and Harrup v UK 1999), but that wouldn’t worry a robust Tory such as Mitchell. This obscure medieval law seems to be exactly what Boris is looking for – and might fit the bill to protect the users of Downing Street and the police from the likes of the sweary Chief Whip.

Some of the issues about swearing at the police were considered by the Human Rights Blog in 2011
See also: Posh or plebs? Cabinet’s class position analysed
And on Mitchell’s successor, Sir George Young:
The baronet and the original cash for honours scandal

Twitter: @alrich0660

Note: The issue of breach of the peace is much more complex than outlined here. Some would make no distinction between “breaching” and “blemishing” the peace, though the former was in Common Law long before the 1361 Act and the latter seems to have a wider definition, as described above. There is some discussion in this Hamlyn lecture from 1952: College of Social Sciences and International Studies (pdf)

Alrich would be pleased to hear from anyone who remembers the “Meow to a police dog” blemishing the peace case, in particular what the result was