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Public order offence for swearing during close pass
So here's an odd one. Just posting it here for any advice, though as a CyclingUK member, I'll also contact them to hear their view.
I was close passed in a really bad way a while back - basically, nearly squeezed between a barrier and a badly driven car. During the process, I "dropped the f-bomb" four times. I submitted the footage to the police, including an apologetic note for my language in the footage. The police are taking it further with the driver, apparently, but the driver has now complained that I was using foul and abusive language, and thus a public order offence. I'm now going to be interviewed under caution for a public order offence!
I've sent some footage to the police before which has included some fruity language, but never had anything like this before. Frankly, the whole thing is embarrasing that this has been taken this far. Surely there is no public interest in pursuing someone who lets their language standards dropped when narrowly escaping a serious road incident?
Any thoughts or advice welcome.
If you're new please join in and if you have questions pop them below and the forum regulars will answer as best we can.
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91 comments
I'm now thinking that we should behave like Ray Shoesmith when dealing with the police:
https://www.youtube.com/watch?v=ul5oC-F-IF0
That's not quite right
(3)It is a defence for the accused to prove—
(a)that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress
So not about a hypothetical person.
Does the footage show any third party nearby as the driver clearly would not be distressed.
Get a solicitor if you do end up in court.
There's nothing hypothetical about it, if there was nobody there to offend then no offence has been committed. It is not enough for it to have happened in a publically accessible place, there actually needs to have been someone there to witness it and to have been 'likely' to have been alarmed (a low bar, unfortunately).
As to your defence, there seem to be two prongs to pleading reasonable conduct:
1. There is a statutory defence to 'reasonable conduct', however, this appears to be more aligned with the conduct being generally reasonable, rather than as a measured reaction to an event.
2. Self-defence applies to this offence. If it can be proven that the actions were a reasonable form of self-defence, then no offence is committed. However, I am struggling to find examples in case law where verbal abuse has been accepted as a reasonable defence.
I am not a lawyer, so I may have not interpreted that correctly, but the law can be quite unfair sometimes. I would get some legal advice.
I would argue that it's not at all likely that anyone in the UK would be offended by the use of the word "fuck".
I tend to agree. I certainly don't think the driver, who was also using foul languge, could be seen as likely to be offended.
But it depends who else might have been there at the time. Basically, this charge could stick if there just happened to be someone walking past.
Whereas being naked in the woods filming kids? If nobody saw it, it's not a section 5 apparently: https://www.bailii.org/ew/cases/EWHC/Admin/2004/2621.html
If other people were around, surely they'd be equally alarmed by the driver swearing ?
And why can't the driver also be done for the same offence ?
Blimey - a conditional caution is one up on a simple caution. What was the condition, don't be the victim of dangerous driving again?
If you refuse the caution, I believe they are almost certain to take it to court:
15.1.4 Where the offender indicates that they do not wish to accept the caution or any of the conditions at that stage, the case will be considered again by the decision maker who will determine whether alternative conditions are appropriate or whether the case should proceed to prosecution. Where it proves not to be possible to give the caution because it is not accepted or reasonable conditions are declined the offender should be charged with the offence. In such circumstances an alternative out of court disposal may not be offered.
https://www.cps.gov.uk/legal-guidance/conditional-cautioning-adults-dpp-...
I don't know what the condition was. Didn't find out. I remain gobsmacked.
I don't know if the CPS is going to take this further. I'll keep people updated. It will be a magistrates court in any case.
This is unlikely to go anywhere near the CPS. This offence is on the list of 'police led prosecutions' https://www.gov.uk/government/publications/police-led-prosecution-list-o...
In a similar way that the Post Office was able to take postmasters to court over the Horizon fraud allegations, the Police are able to take offenders to court without oversight of the CPS for certain offences.
Whether this goes to court or not is likely to be a decision solely made by the officer dealing with your case and their senior.
I am also gobsmacked, but you can't rely on the process to be reasonable unfortunately.
Be very wary of accepting a caution, it does go on your record and can have serious career limiting issues depending on what you do.
Get legal advice
This is true.
The risks of going to court need to be balanced with the consequences of accepting the caution.
Many years ago a friend of mine accepted a caution for urinating up a back alley at 3am whilst a bit tipsy. He ended up having to disclose the caution when applying for a government job. Thankfully it didn't hold him back, but everyone's circumstances are different.
Easy for me to say don't give in, let them see how far they get with that. But in other cycling cases, they've been dropped before trial b/c a prosecutor gets hold of the file & can back down if they think it is not a winner.
in other cycling cases, they've been dropped before trial b/c a prosecutor gets hold of the file & can back down
This fiction that it's 'all the decision of the CPS' is just another police dodge, so they can blame some un-named person elsewhere for the police decision to abandon the case against an offending motorist - the police just tell the CPS what the police 'want to be advised' in cases of offences against cyclists which neither organisation could care less about. However, the general venality and hostility to cyclists displayed by the police should not be underestimated when cases against cyclists are concerned. Although this case appears exceptionally stupid even for the police, we should not forget how much they dislike cyclists who annoy them by reporting, with high quality indisputable evidence, offences committed by motorists that they would much prefer to ignore with a forgiving smile: that's OK, everybody does it
I suffered a close pass by a BMW driver 2 or 3 years ago. 10 yards later he was stopped by temporary lights. It's all on video: there's no swearing at all by me, and he threatened to "fucking flatten" me and "you WILL be knocked off" your bike. The PC who was allocated the case almost immediately claimed to have been transferred to another station. I kept on harping on about it and over a month later, I received an email from the officer saying "I have spoken to the driver. He shouldn't have spoken to you like that". No mention of the close pass- all on video. That was it. This horror of swearing displayed by these precious, sheltered officers is simply a dodge which is only applied to cyclists and is transparently designed to get drivers off offences the police refuse to accept as 'real'.
An update after my interview
So, some points after my very disappointing interview.
1. The swearing public order offence thing wasn't to do with what happens in the moment of the pass itself, it was me swearing in response to the driver swearing at me in the 'afters'. Even though the driver instigated everything and was in a 2 tonne metal box, swearing at them could be seen as aggressive. So:
Lesson number 1 - After a close pass, keep your mouth shut and get out of there
2. Amazingly, the officers informed me that they have No Further Actioned close pass incidents purely on the basis that there was swearing DURING the close pass, with no 'afters'.
Lesson number 2 - if you happen to mutter swearwords during a close pass, submit the video with the soundtrack deleted
3. The officers were perfectly happy to lecture me on my choice of road positioning, risk awareness, etc, which they were happy to tell me was based on what they would do in a car. It turns out that they hadn't ridden a bike on the roads in decades, in part because it is too dangerous
Lesson number 3 - the police officer reviewing footage probably has no experience of riding a bike, and is basing their interpretation on their prejudices
There's a few other things which I can't face including, but which basically confirm my view that the police are less than useless and more than prejudiced when it comes to dealing with cycling issues. Of course, I'm sure that there are some dedicated, experienced, sympathetic officers, but I just didn't meet any today.
I hope you waited until you were out of the interview room - and the police station - before you started swearing again?
It was hard work, but I managed it.
So, so depressing. Thank you for reporting back though. I wonder what they NFAd - I'd hope that it was directed profanity ("you f***ing c***") and not just an involuntary exclamation ("F***ing hell!")
It was absolutely an indirect, involuntary exclamation.
The fact that the exclamations came AFTER and as a DIRECT CONSEQUENCE of the close pass just made it absolutely mind-numbingly stupid.
institutionally anticyclist
I was referring to your point 2 - where they told you they'd NFA'd others for swearing during a pass.
Yeah, that's what I'm talking about - in other incidents where people involuntarily swear, they sometimes NFA it based purely on what they mutter. The example was someone exclaiming "F***er" during a close pass
That's what I was getting at - I wonder if would make any difference if it was "f***" (exclamation) rather than "f***er" (arguably directed at the individual). I suspect their reasoning doesn't get into that level of detail though and, either way, it's nonsense. But I will do my best to restrain my mouth in future...
So in short - the police as usual were a55hats.
Well, the bit of advice that swearing loudly in a public place isn't a good idea was reasonable. I'll take that on board. The rest was baffling and at times infuriating.
Does this mean no action against you ?
The rest is just an excuse to do nothing.
I await further information of whether I will be cautioned for a public order offense. I have no intention of accepting any caution.
Good for you, don't!
I can't work out whether they are still proceeding with action against the driver?
They have been issued with a NIP, which I think is for careless and inconsiderate driving. So probably 3 points on their license....
This is a staggering case of bothsiding by the police!!
That's very disappointing. Sometimes the fear/shock of a nasty close pass remains in the system for hours afterwards, it's wholly understandable you would utter a few expletives at the driver especially if that's how he addressed you afterwards too. I've sworn during a reported close pass & never been upbraided about it!
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