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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
It's some catch, that Catch 22: swear and the police go after you for a public order offence, don't swear and you were obviously not 'inconvenienced' enough and it wasn't a close enough pass
The police are taking it further with the driver, apparently...
That's what the police want you to think- the 'taking it further' will, at best, likely be another letter to hang on a nail in the toilet with all the others or, more likely, nothing at all
This action is symptomatic of an organisation which is overstaffed and overfunded.
What a stupid comment. Its nothing of the sort. Its the driver gaming the system to avoid points.
Incorrect.
If someone swung a baseball bat near my head and I swore at them for doing so, would the police charge me with a public order offence? It's ridiculous.
Being interviewed (even under caution) is very much not the same as being charged.
If there's no crime to investigate then why bother with an interview?
There's a complaint to be investigated; the result of that investigation determines whether they think that there's a crime to pursue charges for.
The complaint needs to be one of a crime, obvs.
Ok - would they interview me under caution in those circumstances.
If you are to be interviewed under caution, make sure they are providing you with a lawyer, and make sure you have conferred with the lawyer before answering any questions other than basic identity questions. Even [especially] casual, off-the-cuff, 'inconsequential' questions, ("... and you're here to discuss your swearing, aren't you?).
Don't be tempted to give any preliminary answers, because they may stray into territory you haven't been advised on beforehand.
Don't be tempted to answer 'no comment' except where your solicitor has advised you to...
The prescribed caution read to you will say,
"You do not have to say anything, but it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence"
You are unlikely to know when it may or may not harm your defence to say nothing, but I suggest it is less likely to harm you if you can say you were acting on legal advice to say nothing.
I would hazard a guess that any leverage from your interview under caution to lead to an outcome that is '6 of 1/...' is likely to lead to the police taking NFA. Your solicitor should be able to find a path to dismiss the 'public order'
nonsenseconsideration out of hand while retaining the prosecution of the driver.Your solicitor is also the better person to be asking counter-questions in an interview - when did the notion of a public order offence arise? what do they expect somebody who feels their life at risk to say? Your solicitor can be argumentative because they are not part of the equation. You need to appear very reasonable and unriled in all but the most life-threatening circumstances.
In all moments, you need to have in your mind the 'Yeronna' test... "and that is why I said that at that moment, Yeronna."
HTH (IANAL)
You were not swearing at the driver but as a stress response to their actions.
https://pmc.ncbi.nlm.nih.gov/articles/PMC10171984/
"The current study contributed to the existing body of scientific knowledge by correlating profanity with stress, anxiety, and depression. The study viewed the positive effects of profanity similar to the role of self-defense mechanisms in releasing psychological distress. Furthering the existing studies on pain and stress management, the current study highlighted the cathartic role of profanity in stress, anxiety, and depression as well."
I'd question how did the driver heard the swearing to make such a complaint.
Had a driver yell something at me today, I'm sure he might have sworn at me else why say anything at all as we were travelling in opposite directions, all I heard was gobbledegook.
Presumably the police played them (or their lawyer) the video. It appears the complaint only came after the police pursued the driving offence.
if the complaint (and awareness of the language) comes from the video being played to them, surely any offence or distress is caused by those who chose to play the soundtrack to them rather than the OP who made the remarks
* I know the defence would struggle to stand up, but it is a bit like the number of complaints about TV progs when the press gets hold of the story and the complaints increase 10 fold, I seem to remember there being a case where the complaints outnumbered the original audience numbers
Yes - it seems entirely vexatious, and I imagine it won't get any further than going through the motions.
Well, for the initial two instances of swearing, it was more a "F - off", as a distressed shout when I suddenly found someone driving about 10cm from my elbow, trying to squeeze me against a barrier. 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.
To my mind, there is absolutely not a case for me to answer. The driver is deluded in pursuing this. My worry is why the police have chosen to pursue this.
See Section 4A under https://www.cps.gov.uk/legal-guidance/public-order-offences-incorporatin...
AIUI, the prosecution would need to prove that your words caused harassment, alarm or distress to the driver. But if he has used the same language, I don't see how he can claim to find such language distressing.
I'm assuming nobody else was in ear shot.
Can't they additionally do the driver for a public order offence as well then if they're playing this game ?
It would be immature to say just tell them to fuck off, so I won't do that...
Basically they will try to say that you have committed an offence under the Public Order Act 1986, but an offence is only committed if your words:
Just using "foul and abusive language" is not an offence. If all you've said is "For fuck's sake" or "fucking hell" or similar, ask them to explain how this would cause harrassment, harm or distress to a person locked inside an impregnable steel box when uttered by a cyclist. Deal with them with courtesy and respect, and when they've finished make a complaint to your local PCC and if you don't get a satisfactory response (which is almost guaranteed) escalate it to the IOPC. Good luck!
P.S. I'm sure that at whatever time you feel it appropriate road.cc would be very interested in your video and hearing your story too.
Take a lawyer.
There is a clear defence under (c)
(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, or
(b)that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or
(c)that his conduct was reasonable.
But you'd need someone with legal expertise to demonstrate that.
The defence is under no obligation to prove anything.
That's the wording of the law.
Wouldn't you want your solicitor to demonstrate that your defence met the legal requirements?
Apparently self-defence applies here. So as I used the "f-bomb" as an alarm call to get the driver to not hit me, then I presume this is a reasonable defence. Will speak to a solicitor.
If you are on twitter @markandcharlie Recently retired top road cop sympathetic to cyclists. Pretty sure he has made comments on this sort of issue.
edit:
"Anyone ever worrying about swearing on #3rdpartyreporting videos just listen to how many bleeps that have to put over my bodycam footage at the end of this "
https://x.com/markandcharlie/status/1511382988344508423
Good advice - if you are straying on to twitter, you might drop a DM to Rory McCarron @CyclingLawLDN and see if he has any advice.
remove the soundtrack before you submit?
I'm amazed anyone's camera picks up legible audio to begin with, my front camera sounds like it's stuck in a metal bucket full of bolts, whilst my rear camera sounds like it's stuck underwater, arguably because it has a rain protection cover which blocks the microphone, but the front has no such excuse.
I once submitted a clip and apologised for the noise because it was 5mins of hellish full volume audio white noise.
Sounds like a box ticking exercise to me - a complaint's been made, so they have to go through the motions of talking to you before concluding that there's nothing to see here.
Probably best to get the advice of someone more qualified than internet lawyers, though.
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