[the little onion]

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.

Topic

[anotherflat]

Be very wary of accepting a

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
 

[Hirsute]

It does say
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

[quiff]

My reading of the offence is

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.

[hawkinspeter]

Well, Lee Anderson only has

Well, Lee Anderson only has to apologise, so maybe the police should try a bit of consistency

https://www.theguardian.com/politics/2024/nov/06/lee-anderson-told-to-apologise-after-swearing-at-parliament-security-guard

The MP for Ashfield, who was the deputy chair of the Conservatives at the time, was found to have twice sworn at the security officer and acted in a way that “constituted bullying, and also harassment” in breach of parliament’s behaviour policy.

The security officer told an investigation that Anderson had instructed him to open a door. He said when he asked to see the MP’s parliamentary pass, Anderson said: “Fuck off, everyone opens the door to me, you are the only one.”

The officer said he explained he would need to check the MP’s pass, and that Anderson replied: “Fuck you, I have a train to catch,” before walking out of the search post.

[Hirsute]

Because there would be a lack
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.

[quiff]

Not sure the driver would

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)

[Hirsute]

Another reason to go to court
Another reason to go to court is that it’s a fair bet the driver won’t even turn up.
A solicitor would have a field day with him given the 3 points.

[stonojnr]

If other people were around,
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 ?

[HoarseMann]

the little onion wrote:

 

It is exactly this – it is whether or not there is a hypothetical person who might reasonably have been in earshot, and who would potentially have been offended.

My argument is that my actions were reasonable given that I had just been through a very, very dangerous and scary incident.

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.

[Hirsute]

That’s not quite right

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.

[HoarseMann]

hawkinspeter wrote:

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

[hawkinspeter]

I’m now thinking that we

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

[hawkinspeter]

HoarseMann wrote:

It would also matter if there were other people within earshot, a third party not involved in the incident, and their perceived fragility to strong language.

Interesting case discussed here:

Section 5 of the Public Order Act 1986: The Impact of Harvey v DPP

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”.

[the little onion]

HoarseMann wrote:

hawkinspeter wrote:

That could be interesting. The swearing itself would be a matter of fact, but whether or not the driver was “likely to be caused harassment, alarm or distress thereby” is more an opinion.

It would also matter if there were other people within earshot, a third party not involved in the incident, and their perceived fragility to strong language.

Interesting case discussed here:

Section 5 of the Public Order Act 1986: The Impact of Harvey v DPP

It is exactly this – it is whether or not there is a hypothetical person who might reasonably have been in earshot, and who would potentially have been offended.

My argument is that my actions were reasonable given that I had just been through a very, very dangerous and scary incident.

[HoarseMann]

hawkinspeter wrote:

That could be interesting. The swearing itself would be a matter of fact, but whether or not the driver was “likely to be caused harassment, alarm or distress thereby” is more an opinion.

It would also matter if there were other people within earshot, a third party not involved in the incident, and their perceived fragility to strong language.

Interesting case discussed here:

Section 5 of the Public Order Act 1986: The Impact of Harvey v DPP

[Author]

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