No: 200605711/C5 
Neutral Citation Number: [2006] EWCA Crim 3323
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Thursday, 21st December 2006
 
B E F O R E:

 LORD JUSTICE MOSES 

MR JUSTICE GOLDRING 
 
HIS HONOUR JUDGE MARTIN STEPHENS QC
(Sitting as a Judge of the Court of Appeal Criminal Division) 

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R E G I N A 

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CPS LEICESTER
 
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MR J HOUSE appeared on behalf of the APPELLANT
MR C KESSLING appeared on behalf of the CROWN
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J U D G M E N T 

1.	LORD JUSTICE MOSES:  This is an appeal pursuant to section 58 of the Criminal Justice Act 2003.  A defendant, whom we shall call CF, was appearing at Leicester Crown Court facing a charge of causing racially aggravated alarm or distress within section 4A of the Public Order Act 1986.  Mr House, for the defendant, took the point that the offence could not have been committed and no jury property directed could convict her of it because at the time of the alleged offence she was detained in a police cell.  He had taken that point properly in his defence statement.  
2.	Unfortunately, there appears to have been no arrangement made, as there should have been, for that legal issue to be litigated, before the case was listed for trial before a jury.  It therefore appeared as a jury trial in the Crown Court at Leicester on 2nd November 2006.  It needs no emphasis from us, and particularly not from Goldring J, to say that there ought to have taken place a legal argument to determine this issue, before a jury was available and before witnesses were warned.  This was particularly important since the witnesses were police officers.  They had not in fact turned up by the time the legal issue was aired in court, but, of course, the matter ought to have been considered and concluded well in advance of any jury being summoned to try it.  
3.	The issue is one which understandably concerned the prosecution.  It is whether an offence contrary to section 4A of the Public Order Act 1986 may be committed in a police cell.  At the time of the alleged offence CF was detained there and was alleged to have made a racially obscene remark to one of the police officers who came into the cell.  
4.	It is necessary to consider the relevant statutory provisions.  By section 28 of the Crime and Disorder Act 1998 an offence is racially aggravated for the purposes of section 29 if at the time of committing the offence, or immediately before, or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's racial group.  Section 31 makes specific reference to section 4A of the Public Order Act 1986.  
5.	Section 4A of the Public Order Act 1986 provides at subsection (1) as follows:
"A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he -- 
 (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
 (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
thereby causing that or another person harassment, alarm or distress."
6.	It continues by identifying the place where such an offence may be committed as follows:
"(2) An offence under this section may be committed in a public place or a private place, except that no offence is committed where the words ... are used ... by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling."
7.	Dwelling is defined by section 8 of the 1986 Act as follows:
"'dwelling' means any structure or part of a structure occupied as a person's home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose 'structure' includes a tent, caravan, vehicle, vessel or other temporary or movable structure."
8.	Mr House, with admirable persistence, submits that the police cell is other living accommodation.  There are features, so he contends, of a person's accommodation in such a cell which are similar or analogous to that which might be expected in a place where a person lives or which he occupies as a home, for example, eating, sleeping and completing ablutions.  It matters not that the person there is under compulsion or only there temporarily.
9.	The areas where an offence under section 4A may be committed are not limited to public places.  An offence such under section 4A may also be committed in private.  The area where a person may indulge in the conduct prohibited by section 4A with impunity are, accordingly, narrowly confined.  Such areas are confined to a structure or part of a structure which is occupied as a person's home or other living accommodation.  There is no exception in relation to the areas where such an offence may be committed in relation to mere accommodation.  The concept of other living accommodation takes its meaning from association with the concept of a person's home.
10.	A police cell is not a home.  It is not "other accommodation where a person lives", even though a person detained in a police cell may from time to time do the same things which he or she may do in this own home, or in the place where he or she lives.  The judge was accordingly wrong to rule that the police cell came within the exception to subsection (2) of section 4A.  A police cell is a place where a person is detained in custody, not a place which a person occupies as living accommodation.  
11.	This case probably went wrong because the judge, in giving his conclusion that the defence were right, did not set out his reasons.  Had he done so, he might have appreciated there were no reasonable grounds for his conclusion.  A number of problems were canvassed in argument as to whether section 4A, by reason of the terms of section 4A(2), covered different types of places where people might be said to be accommodated.  But no elucidation or illumination is achieved by worrying about whether, for example, a hospital ward or a prison cell may be occupied as "other living accommodation".  This case does not concern such structures or parts of structures.  This case concerns a police cell.  It is, therefore, important to concentrate on the words used in subsection (2) and their impact on ordinary understanding.
12.	The judge's task was to rule as a matter of law.  In other words, whether as a matter of law the structure could be said to be occupied as a person's home or as other living accommodation.  That required him to rule whether the structure in question, namely the police cell, was capable of being regarded as falling into that category.  If there was scope for any reasonable argument then the issue was a question of fact for the jury.  If it was not susceptible to any reasonable argument, then the judge was required to rule as a matter of law.  In the instant case the judge ruled as a matter of law that a jury could not conclude other than that the police cell fell within section 8.  Not only did he err in so ruling, in our view he should have ruled that, as a matter of law, the police cell was not capable of being regarded as occupied as a person's home or as other living accommodation.  There was no room for any reasonable argument to the contrary, and if the case is contested the jury should be directed accordingly.
13.	We respect the achievement of counsel for the defence, Mr House, in convincing the judge that a police cell was a home, but sometimes early forensic success meets its nemesis in this court.  When a bright idea strikes counsel as a moment of epiphany it is useful for the advocate to recall the advice of that illustrious member of the Modern Jazz Quartet.  Miles Davis advised, "Think of a note.  Don't play it."  The appeal is allowed.
14.	LORD JUSTICE MOSES:  What happens about the orders that I should make -- that we should make? 
15.	MR KESSLING:  It is simply, in my submission, to remit the case back to the Crown Court with a direction that the judge rules in accordance with your Lordship's ruling.
16.	LORD JUSTICE MOSES:  7-247.  Order -- is it a fresh trial or proceedings being resumed?  I think it is probably a fresh trial?  What do you think?  Had a jury been sworn? 
17.	MR KESSLING:  No jury had been sworn.
18.	LORD JUSTICE MOSES:  And she hadn't been arraigned, so it's a fresh trial.  So we will make an order that a fresh trial take place at Leicester Crown Court, or wherever is convenient, pursuant to section 61(4)(b).
19.	What is the position about costs?  Are you asking for costs from the accused, or she is legally aided? 
20.	MR KESSLING:  She is legally aided.  We don't seek costs.
21.	MR JUSTICE GOLDRING:  She is on bail.
22.	MR HOUSE:  We have already been given another fixed trial.  Obviously someone in the listing office at Leicester reached the same conclusion as your Lordships.  
23.	LORD JUSTICE MOSES:  We don't need reporting restrictions.  No juror is going to read the law reports.  Anyway, it doesn't affect her guilt or innocence. 
24.	 A LAW REPORTER:  My Lord, I believe there are reporting restrictions.
25.	LORD JUSTICE MOSES:  Then they are lifted, because it doesn't affect guilt or innocence.  I certainly did not say what she is supposed to have said, which no doubt she denies.