Dwell not: DPP v Distill [2017] EWHC 2244 (Admin)

Fiona Alexander

Fiona Alexander
28 November 2017

The concept of a “dwelling” has some significance in the criminal law. A burglar who commits their crime in a dwelling is sentenced more harshly than if they were to have burgled a non-dwelling, such as a shop. In the context of the Public Order Act 1986 (“the Act”), a person cannot commit the offence of causing harassment, alarm or distress under section 5 when they use the words or exhibit the behaviour when they are inside a dwelling and the affected person is also inside a dwelling. For the purpose of that Act, a dwelling is defined in section 8 as “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…”

It was the understanding of the concept of “dwelling” in the context of section 5 of the Act that the High Court grappled with in DPP v Distill [2017] EWHC 2244 (Admin). The case arrived at the High Court by way of case stated from the magistrates’ court. The matter arose from an alleged incident in which the respondent, when in the back garden of her grandmother’s property, was said to have shouted racist abuse; this was heard by neighbours in the adjoining property, who also happened to be in their back garden. The respondent denied using the words, but she was charged with an offence under section 5(1) of the Act for using threatening or abusive words or behaviour within the hearing of a person likely to be caused harassment, alarm or distress. Furthermore, the offence was alleged to have been racially aggravated within the terms of section 28 of the Crime and Disorder Act 1998, contrary to section 31(1)(c) and (5) of that Act.

It was accepted as between the parties that the incident had taken place wholly within the back gardens of the adjoining properties. At trial, the magistrates found that the definition of a “dwelling” includes a private garden such as the back garden which featured in this case, and therefore, no offence had been committed. Having made this pre-trial ruling, the magistrates’ ruled that there was no case to answer at the close of the prosecution case. The High Court was asked by the magistrates’ court whether it was correct in its ruling that the incident had occurred inside a dwelling.

The High Court ruled that the magistrates’ court was not right to have made this ruling. It was argued on behalf of the respondent that the Court could be assisted by looking at the meaning attributed to the words “dwelling” and “dwelling-house” in other statutory concepts. The Court, however, agreed with the appellant: to establish the scope of the exception, the Court should concentrate on the language of the Act itself. In making its ruling, the Court first looked to case law relating to section 4 of the Act (the causing of fear or provocation of violence), which also cannot be committed where the words or behaviour are used by a person inside a dwelling where the affected person is also inside that or another dwelling. In Atkin v DPP (1989) 89 Cr App R 199, Henry J observed that the intention of Parliament in drafting this exception was to exclude domestic arguments from the reach of the criminal law even where those arguments would, if repeated outside the dwelling, create an offence.

The Court also reflected on the judgment of the Court of Appeal in R v Francis [2006] EWCA Crim 3323. In that case, the Court of Appeal considered the offence under section 4A of the Act (intentional harassment, alarm or distress). This is another offence that cannot be committed when the person is inside a dwelling. Giving the judgment of the Court, Moses LJ recognised that the “area where a person may indulge in the conduct prohibited by [section] 4A with impunity are … narrowly confined”; the offence can be committed in public or in private but not a structure or part of a structure which is occupied as a person’s home or other living accommodation.

Having reviewing the case law relevant to sections 4 and 4A of the Act, Lindblom LJ, giving the judgment of the Court, ruled that the exception to the offence in section 5(2) is narrowly drawn and that Parliament intended it to cover words or behaviour used by persons in domestic gardens as well as words or behaviour used by persons inside dwellings. The Court recognised that the definition of “dwelling” in section 8 of the Act must be something that can be described as a “structure” or “part of a structure”, and considered that the ordinary meaning of “structure” is something that is built or constructed. The Court held that it follows that, in some circumstances, a garden could itself be a “structure” forming an integral part of the building (a roof garden or a winter garden), and that some gardens contain “structures” (pergolas, treehouses, or gazebos). However, the Court recognised that, ordinarily, a front or back garden would not be regarded as a “structure” or “part of a structure”. Lindblom LJ continued, saying that even if a garden was physically “a structure” or part of one, it would not normally be regarded as being a structure “occupied as a person’s home or as other living accommodation” as that would usually be the part of the building in which that person resides. Finally, the Court pointed out that this understanding of “dwelling” in section 8 is consistent with the use of the words in section 5(2), according to which the offence cannot be committed by a person “inside a dwelling”. As Lindblom LJ pointed out, one would not normally use the preposition “inside” when referring to a person who was in a garden. The Court roundly rejected the argument that a back garden of a dwelling falls within the definition of “dwelling” in section 8.

When instructed in cases involving similar allegations, it will be important to consider where exactly the offence is said to have taken place. However, as this judgment makes clear, the exclusion is very tightly drawn. In most cases, where words are said or someone behaves in a way likely to cause harassment, alarm or distress in an ordinary garden of an ordinary home, this exception will not apply.