Second, evidence will always be required that the hearers would be likely to be caused harassment, alarm or distress: this cannot be inferred. In such circumstances, whether the words are or are not abusive may depend upon the manner of their use, the context in which such words are used, and perhaps even the cultural background of the person using them. In many cases, the only victims of the offensive behaviour are police officers. First, the context in which the words are used may be important. There was no evidence of that here and the conviction was therefore quashed. Having decided that the words spoken were potentially abusive, the court went on to state that there must also be proof that the words were spoken within the hearing of a person likely to be caused harassment, alarm or distress by them. It found that the words did amount to amount to abusive or insulting words or behaviour. This was cited with approval in Harvey suggesting that, five years on, the word “fuck” has still not yet lost its potency. Questions of context and circumstance may affect the court’s ultimate conclusion as to whether, in an individual case, they are abusive.” Frequently though they may be used these days, we have not yet reached the stage where a court is required to conclude that those words are of such little significance that they no longer constitute abuse. In relation to the word “fuck”, the High Court had held in Southard v DPP EWHC 3449 (Admin) that (emphasis added): “…hether or not the person addressed is a police officer or a member of the public, the words “fuck you” or “fuck off” are potentially abusive. The court held that the first element that must be proved is that the words spoken were “threatening, abusive or insulting”. Nevertheless, the appellant was convicted on the basis that the defendant used the words in a public area in the middle of a block of flats and that there were people nearby. He was arrested and charged with a section 5 offence. At trial, no evidence was given that any of the officers had been harassed, alarmed or distressed by the appellant’s words nor was any evidence given that anyone else had been. Finally, when he was asked if he had a middle name, replied, “No, I’ve already fucking told you so”. He was searched and, when nothing was found, said, “Told you, you won’t find fuck all”. He was told that if he continued to swear he would be arrested for a section 5 offence. One attempted to search him and he objected saying, “Fuck this man, I ain’t been smoking nothing”. The appellant, Denzel Harvey, was stopped by police outside of a block of flats on suspicion of possessing cannabis. Unique amongst the public order offences in the Act, section 5 requires no proof of any intention, nor that any person actually be caused harassment, alarm or distress, only that the act took place within the hearing or sight of a person “likely” to be caused harassment, alarm or distress.
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