Public order offence for swearing during close pass

Please take a lawyer. I'm sure people on here would contribute to a fund for this if required.

the little onion wrote:

Basically, just as misogeny exists in the police and in society, anti-cyclist prejudice exists in society and the police. 

Absolutely without a doubt, a small example recently: I was cycling down The Mall in London from Buckingham Palace towards Admiralty Arch and Marlborough Road on the left which leads to Saint James's Palace and is the only road leading off The Mall was closed for some ceremony or other, making the traffic lights that control the junction pretty much redundant. Not wishing to get in trouble I came to a stop and asked a policeman on duty at the barrier if it was okay for me to ride through the red light, he replied, "You lot don't ask any other time, you just do it, so go on then..." I just gave him a dirty look and carried on but afterwards it occurred to me that if he had made such a generalised comment about a person from an ethnic minority, homosexuals or whatever he would (quite rightly) have been in serious trouble if a complaint was made, his language and his tone showed that he obviously works in an environment where abuse towards cyclists and stereotyping them as an homogenous entity is the norm.

It's absolutely outrageous that the authorities have continued this ridiculous prosecution against you; they should never have taken action in the first place and even if they felt it necessary to do something it's quite clear from your statement of the facts that a simple "Mind your language next time, people could use that as a basis for a complaint against you" warning would be ample. Good luck, keep us informed as to how it goes and as I see you are Cycling UK member I hope they are offering legal services to support you? 

Road.cc eds, this is a case which would seem to have serious ramifications for all cyclists if prosecutions are going to be initiated for swearing at people who have nearly killed us, one for you to investigate further?

Aside from that being 20/20 hindsight, you'd had to have made a policy decision to disable the camera mic. If it goes to court, you'll have to supply the original which will have sound. Whether the police could demand the original before then as part of their investigation, I don't know.

Firstly it's pretty desirable to leave the sound in if at all possible, not only so the police can hear how genuinely shocked the victim was by the incident but also to give them extra evidence in terms of engine noise et cetera that might help them judge proximity; secondly, in an early response on this thread TLO said "The second two F-bombs came less than 5 seconds later when the driver wound down the window to call me a "f-ing danger", and which I pointed out where the real "f-ing danger" was" so the driver definitely heard the language in question.

the little onion wrote:

I didn't remove the sound because I didn't think that it mattered - quite clearly the swearing was in reaction to an act of frankly horrid aggressive driving, so it was clearly reasonable. I simply could not imagine that it was a public order offence. And also, my reaction in the video just underlined how bad the driving was, if it weren't readily apparent. Once again, genuinely gobsmacked at the police reaction.

To be charitable to the police (though I wonder why I should), they're acting on a specific complaint raised by the motorist and so are doing their job. However, I wonder why they didn't just send you a warning letter instead which would have been far more appropriate. Ideally they should treat the swearing as a natural consequence of the driver's abysmal driving. It'd be like prosecuting a stabbing victim for bleeding on the pavement.

I sincerely hope that the case just gets thrown out as a complete waste of time and money.

Not sure the driver would necessarily need to be present for the police to prosecute the public order offence? In theory they just need to prove someone was proximate who was likely to be alarmed etc. However, also spotted that you also need to have intended your words to be threatening or abusive, or aware that they may be - s.6(4) Public Order Act. (IANA(Crime)L)

Because there would be a lack of evidence and no opportunity to question the witness. The prosecution has to prove their case ie it's not enough that there was swearing you have to prove distress.
Cycling Mikey often comments that drivers opt for court in the hope the witness does not turn up leaving the case dropped.

My reading of the offence is that you don't need to prove actual distress - only that the swearing was within hearing of a person likely to be caused distress etc. HoarseMann's link below says so too. So while you need to prove there was an actual (not hypothetical) person to hear the words, you don't need to prove that they were actually distressed by them. In theory therefore video evidence of the swearing could be enough, without needing to establish the driver was actually alarmed. In practice I don't know, this is just speculation.

It does say
However, it is important to remember that proving the defendant’s intent is not enough. There must also be evidence of somebody (which need not be the person targeted) suffering actual harassment, alarm or distress as a result.

I don't think it's enough that the driver ( having sworn in the same manner) claims distress. That's why I've said in my posts that the op should get a solicitor. There is a defence to the charge but you'd need legal assistance to demonstrate that

I think that relates to a different offence under s.4A - causing intentional distress. It's quoted from here: https://www.cps.gov.uk/legal-guidance/public-order-offences-incorporating-charging-standard#:~:text=This%20can%20usually%20be%20proved,or%20distress%20as%20a%20result.

However, I'm an interested amateur and this speculation probably isn't helping the OP! Get a qualified solicitor if it goes to court!

Hirsute wrote:

However, it is important to remember that proving the defendant’s intent is not enough. There must also be evidence of somebody (which need not be the person targeted) suffering actual harassment, alarm or distress as a result.

From what I have read, this is not the case. Intent seems to be irrelevant and there's no need to prove actual alarm/distress occurred...

"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."

Strictly speaking that blog is correct to say they do not need to prove intention but it looks like they do need to prove either intent or awareness:

s.6(4) POA 1986: A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening [F1or abusive], or is aware that it may be threatening [F1or abusive] or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.

But I think it's right that only a likelihood of alarm is required, not actual alarm.  

Yes, you'd have to be aware that a swear word may be abusive. But I should think that test is passed easily in this case.

I was looking at S4.
But the word 'likely' does require a degree of proof not just a claim.
How likely was it that the driver was distressed?
That's why you need a lawyer present.

Ah yep, section 4 is a bit more serious. That can result in a prison sentence and I think has to involve the CPS. I suspect this would be a section 5, as it can be a police led prosecution and there's no custodial penalty, just a fine:

Factors tending to indicate that a charge under section 4A is appropriate would include:

Sustained abuse
Targeting a lone victim
Significant effect on victim

Factors tending to indicate that a charge under section 5 is sufficient would include:

Single remark
Victim is not alone/isolated
Effect is minor/transitory

HoarseMann wrote:

"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."

Since the driver used similar language it in not "likely" that he was caused harrasment alarm or distress by having it returned to him. (IANAL)

the little onion wrote:

Further update - they have offered me a conditional caution, which I have refused. I await to see if they take this to court. 

One other thing that really bothered me - as part of their evidence, they cited the fact that in the 50+ submissions that I have uploaded in recent years, four of them had swear words in them, and this was evidence that I'm a frequent offender. I had to point out that this same evidence indicated that in 90% of cases, I didn't swear. I asked them if they had ever been in a dangerous road incident, and if so, did they swear. They admitted that they had been, and they did swear.

I know they are supposed to have a certain strategy of questioning, but that is ridiculous.

I can't see it going to court, or if it does, I'm sure it'll get thrown out as a complete waste of time. I can't imagine any jury that wouldn't just laugh at the idea that a driver was caused offense by their victim swearing.

Seems to me like they're just trying it on to see if you'll play nice and rollover for them.

hawkinspeter wrote:

I can't see it going to court, or if it does, I'm sure it'll get thrown out as a complete waste of time. I can't imagine any jury that wouldn't just laugh at the idea that a driver was caused offense by their victim swearing.

Seems to me like they're just trying it on to see if you'll play nice and rollover for them.

Maybe little onion breathes fire or something, but I agree with your second point

This won't involve a jury, it'll be heard in front of a magistrate. They will likely be more matter of fact of whether the evidence meets the threshold for the offence. I'd be talking to a solicitor.