CRIME — Public order —Causing harassment, alarm or distress — Displaying threatening, abusive or insulting visible representation— Complainant not fully aware until several months after display — Complainant becoming full aware only when police officers showing him photograph of display — Whether chain of causation broken by passage of time or acts of police officers in showing photograph to complainant — Public Order Act 1986, s 4A

S v Director of Public Prosecutions; [2008] WLR (D) 43

QBD: Maurice Kay LJ and Walker J: 8 February 2008

The offence under section 4A(1)(b) of the Public Order Act 1986 of displaying, with intent to cause a person harassment, alarm or distress, a visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress, may be established even where the harassment, alarm or distress crystallises only at the date several months after the act of displaying and at the instance of action by a police officer.

The Queen's Bench Divisional Court so held when dismissing an appeal by case stated from a decision of District Judge Harrison, adjudicating as a Youth Court at Harrogate, by which the defendant was convicted of an offence under s 4A of the 1986 Act.

On 12 October 2005 the defendant took a digital photograph of the complainant, a security guard, outside an animal testing laboratory during a demonstration. Next day he loaded onto the internet an image which comprised that photograph, together with a speech bubble, and with text which alleged that the complainant had a previous conviction for violence and had mistreated demonstrators. A few days later the complainant learned of this material from colleagues, but he did not see the photograph until 8 March 2006 when police officers showed him a hard copy. It was not established whether the material was still on the website on 8 March 2006.

MAURICE KAY L J said that a contention that the defendant did not have the requisite intent could not now be raised, as it had not been raised before the District Judge and was not covered by the case stated. In any event the District Judge must have concluded that the defendant had had the necessary intent, and that was an inference that had been open to her on the facts. The issue of causation arose because the act of displaying took place on 13 October, but the harassment, alarm or distress crystallised only on the following 8 March. The posting on the internet had eventually caused the harassment, alarm or distress, so the questions were whether the passage of time, or the fact that police officers had shown the photograph to the complainant, had broken the chain of causation. The answer was ‘no’. The defendant had taken a chance in posting the material on the internet, and the time and the circumstances in which it had been brought fully to the attention of the complainant were immaterial.

WALKER J gave a concurring judgment.

Appearances: Maya Sikand (Harrison Bundey) for the defendant; Chris Smith (Crown Prosecution Service) for the Director of Public Prosecutions

Reported by: Philip Ridd, solicitor