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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> The Director of Public Prosecutions v Distill [2017] EWHC 2244 (Admin) (08 September 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/2244.html Cite as: [2017] 4 WLR 177, [2017] WLR(D) 619, [2017] EWHC 2244 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 September 2017

Lord Justice Lindblom:

Introduction

1. This appeal requires us to consider the definition of a "dwelling" in section 8 of the Public Order Act 1986. The context is an alleged offence under section 5 of the 1986 Act, said to be "racially … aggravated" within the terms of section 28 of the Crime and Disorder Act 1998 and thus contrary to section 31 of that Act. Under section 5(2) of the 1986 Act, an offence is not committed where the alleged "threatening or abusive words or behaviour" in question are used by a person "inside a dwelling" and the other person is "also inside that or another dwelling".
2. The appeal is by way of case stated. The appellant, the Director of Public Prosecutions ("the DPP"), appeals against the dismissal by the Wiltshire Magistrates' Court, sitting at Chippenham on 18 January 2017, of proceedings against the respondent, Ms Jane Distill, for an alleged offence under section 31 of the 1998 Act.
3. The proceedings arose from an alleged incident on 31 July 2016, in which Ms Distill, it was said, had shouted "Polish fucking bastards, fuck off!" while in the back garden of her grandmother's property at 72 Meadowcroft, in Swindon, and those words were heard by the next-door neighbours at 74 Meadowcroft, Mr Marek Nykiel and his wife, Alicja, who were in their own back garden at the time. The words Ms Distill was said to have used, but which she denied having used, were alleged to be, under section 5(1) of the 1986 Act, "threatening or abusive words … within the hearing … of a person likely to be caused harassment, alarm or distress thereby", and the offence was alleged to have been "racially … aggravated" under section 28 of the 1998 Act, contrary to section 31(1)(c) and (5) of that Act. It was common ground that the alleged incident had taken place wholly within the back gardens of the two adjoining properties, which comprise semi-detached or terraced houses with gardens, in a suburban area of Swindon. The back garden at 72 Meadowcroft extends to the rear of the house, about seven metres wide and about 27 metres long, bounded by a fence.
4. Ms Distill pleaded not guilty to the charge on 14 September 2016, and the matter was listed for trial on 18 January 2017. The solicitors acting for Ms Distill then sought from the magistrates' court a pre-binding ruling on the question of whether the garden in which the offence was alleged to have been committed was part of a "dwelling", as defined in section 8 of the 1986 Act. They contended that the definition of a "dwelling" must be understood as including a private garden such as this, and therefore that on the undisputed facts of this case no offence had been committed. The DPP argued to the contrary. The magistrates' court decided the question in Ms Distill's favour, and accordingly, when the matter proceeded to trial, ruled that there was no case to answer.

The issues in the appeal

5. The magistrates' court stated a case on 27 March 2017. In the case stated two questions are raised:

"1. Were we right when we ruled that the incident had occurred inside a dwelling as required by Section 5(2) and defined by Section 8(1) of the Public Order Act 1986?

2. In all the circumstances, were we correct to come to the conclusion that the defendant had no case to answer?"

The statutory provisions

6. Section 5 of the 1986 Act, "Harassment, alarm or distress", provides:

"5. (1) A person is guilty of an offence if he –

(a) uses threatening or abusive words or behaviour, or disorderly behaviour …

…

(2) An offence under this section may be committed in a public or private place, except that no offence is committed where the words or behaviour are used … by a person inside a dwelling and the other person is also inside that or another dwelling.

(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."

7. Section 8, "Interpretation", defines a "dwelling" in this way:

"8. In this Part –

"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. A person is guilty of an offence under section 31(1) of the 1998 Act if he commits "(a) an offence under section 4 of [the 1986 Act] (fear or provocation of violence)", or "(b) an offence under section 4A of that Act (intentional harassment, alarm or distress)", or "(c) an offence under section 5 of that Act (harassment, alarm or distress)", which is "racially or religiously aggravated for the purposes of this section". Section 28(1) of the 1998 Act provides that an offence is "racially or religiously aggravated" for the purposes of sections 29 to 32 if "(a) at the time of committing the offence, … , the offender demonstrates towards the victim of the offence hostility based on the victim's membership … of a racial or religious group" or "(b) the offence is motivated … by hostility towards members of a racial or religious group based on their membership of that group".

The decision of the magistrates' court

9. In the magistrates' court, counsel for Ms Distill, Mr Andrew Stone, who also appeared in this appeal, acknowledged that the 1986 Act is "silent" on the question of whether the definition of a "dwelling" in section 8 "includes a private garden such as the one in the instant case where the garden is structurally defined by a physical barrier on all sides". He observed that "case law regarding "dwelling" tends to focus instead on whether communal areas such as shared hallways form part of the dwelling (they don't), leaving the question of private gardens unanswered" (paragraph 4 of his skeleton argument). He relied, however, on the decision of the Court of Appeal in R. v Edwards and Roberts (1978) 67 Cr. App. R. 228, where a prosecution for a public order offence failed because the alleged offence was committed in the defendant's front garden, which was held to be part of his private premises (see the judgment of Bridge L.J., as he then was, at pp.231 and 234). In that case, Mr Stone submitted, the Court of Appeal "appears to have intended that relationship between 'house' and 'garden' to be indivisible" (paragraph 5 of the skeleton argument). He also pointed to section 623(2) of the Housing Act 1985, which provides that a "'dwelling-house' includes any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it", and section 63(1) of the Housing Act 1995, which provides that "'dwelling' means a building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it" (paragraph 6 of the skeleton argument). Finally, he referred to guidance given by the Crown Prosecution Service on the offence of burglary of a dwelling-house, submitting that "[given] that the offence of burglary of a dwelling requires the Defendant to be a trespasser it is clear from this that the Crown itself holds a garden to [be] part of the dwelling" (paragraph 7 of the skeleton argument).
10. It appears that the DPP simply pointed to the statutory provisions, and contended that the definition of a "dwelling" in section 8 of the 1986 Act does not include a private garden.
11. After deliberation, the magistrates gave judgment in these terms:

"The bench have carefully considered whether the garden was a public place – open to anyone, or a private place and part of the dwelling. We have concluded that it is part of the dwelling and both parties were in their private dwellings, therefore, the act does not apply."

12. The matter then proceeded to trial. At the end of the prosecution case, in view of their ruling at the pre-binding hearing, the magistrates ruled that there was no case to answer, and Ms Distill was accordingly acquitted.
13. On 31 January 2017 the DPP made an application to the magistrates to state a case, which they duly did.

Did the alleged incident occur "inside a dwelling"?

14. In advancing the appeal on behalf of the DPP, Mr Peter Grieves-Smith submitted that, to establish the scope of the exception in section 5(2) of the 1986 Act, we should concentrate on the language of sections 5 and 8 of that Act. No assistance could be gained from the meaning attributed to the words "dwelling" and "dwelling-house" in other statutory contexts. Mr Grieves-Smith acknowledged that there is no authority directly on the question of whether the definition of a "dwelling" in section 8 of the 1986 Act includes, or at least generally includes, a private garden. He submitted, however, that the definition of a "dwelling" as a "structure or part of a structure occupied as a person's home or as other living accommodation …" implicitly excludes a garden, which is not a "structure". It followed, he argued, that the gardens with which these proceedings are concerned did not come within the definition of a "dwelling" in section 8. He also submitted – though not in the end as a point on which his argument depended – that the reference in section 8 to a "structure" including "a tent, caravan, vehicle, vessel or other temporary or movable structure" would have been unnecessary if a garden was a "dwelling" as thus defined.
15. Mr Grieves-Smith relied on the judgment of the Court of Appeal in R. v Francis [2006] EWCA Crim 3323, which emphasized the narrow scope of the exception in section 5(2). And he submitted that the decision in Edwards and Roberts does not suggest a conclusion different from that for which he was contending – because that case was concerned with a different statutory concept, namely the concept of a "public place" as defined in section 9 of the Public Order Act 1936.
16. Mr Stone amplified the argument that had succeeded before the magistrates. He accepted that if the garden at 72 Meadowcroft was not a "structure" in the true sense of that concept in section 8 of the 1986 Act, the appeal must succeed. He also acknowledged the force of the Court of Appeal's judgment in Francis – that offences under sections 4, 4A and 5 can be committed on private land as well as in public places, and that conduct which would otherwise constitute such an offence may be carried out with impunity inside a "structure or part of a structure occupied as a person's home". He submitted, however, that the word "structure" ought to be given its normal meaning – in this context, a building or other object constructed from several parts. A "structure" may be something other than a "building". It can be a garden. A garden is, typically, a man-made structure composed of several parts: fencing or a wall enclosing it, a lawn laid on prepared ground or a paved patio or decking, raised beds, and so forth. To be a "dwelling" within the definition in section 8, a garden does not have to be, in itself, a "home" or "other living accommodation". In this statutory context, Mr Stone argued, a "home" is the "overarching structure where someone lives", and a garden is "part of that structure". If a person is in any part of the garden, he or she is "in the home". The "overall structure of a home comprises house and garden". In this case, Mr Stone submitted, the garden at 72 Meadowcroft – and also, presumably, the garden at 74 Meadowcroft – formed "part of the structure of the overall home". It was "not merely a private area". It was "structurally defined by a physical barrier" – the fence. And it was properly to be regarded as "part of a structure occupied as a person's home". It therefore came within the definition of a "dwelling" in section 8.
17. Mr Stone submitted that the concept of an "indivisible" relationship between a house and its garden finds some support in Bridge L.J.'s judgment in Edwards and Roberts. He also relied, as he did before the magistrates, on the definition of a "dwelling-house" in section 623(2) of the Housing Act 1985 and the definition of a "dwelling" in section 63(1) of the Housing Act 1995, in both of which, he submitted, the draftsman had considered a garden to be "an integral part of a dwelling".
18. This analysis, Mr Stone seemed to concede, might not hold good in all circumstances. But it was, he submitted, a valid basis, at least in the circumstances of this case, for the conclusion that the magistrates' ruling was correct. When Ms Distill was in the garden at 72 Meadowcroft and Mr Nykiel in the garden at 74 Meadowcroft, no offence under section 5 of the 1986 Act could be committed. The magistrates were therefore right to rule as they did.
19. I cannot accept Mr Stone's argument, persuasively presented though it was. I agree with Mr Grieves-Smith's submission that we must concentrate on the particular statutory context with which we are concerned, and interpret the language Parliament has used in that context in accordance with normal principles of statutory construction. The importance of doing that is well illustrated in the authorities referred to by counsel, to which I shall come shortly.
20. It is also illustrated, for example, in the recent decision of this court in Hudson v CPS [2017] EWHC 841 (Admin), which concerned the question of whether a particular building was a "dwelling" for the purpose of section 9(3)(a) of the Theft Act 1968, so that the appellant was guilty of the offence of burglary of a dwelling contrary to section 9(1)(a) of that Act. On the facts, and having regard to the natural meaning of the word, the building in question was held to be a "dwelling" even though it was for the time being unoccupied. In the light of the decisions of the Court of Appeal in R. v Flack [2013] EWCA Crim 115 and R. v Sticklen [2013] EWCA Crim 615, the question of whether a particular building was a "dwelling" for the purposes of the relevant statutory scheme was "largely a question of fact for the jury, magistrates or District Judge to decide" (see paragraph 15 of the judgment of Gross L.J., with which Ouseley J. agreed). Gross L.J. went on to say this (in paragraph 18 of his judgment):

"18. For completeness, although we were supplied with the definition of "dwelling", found in s.8 of the Public Order Act 1986 and s.121 of the Terrorism Act 2000, the contexts of those statutes were so different that they did not assist in advancing the argument before us, either way."

21. The particular statutory context with which we are concerned is contained in the 1986 Act, and, in particular, in the provisions of sections 5 and 8. Provisions parallel to those in section 5 are to be found in sections 4 and 4A, and some of the case law relating to those two sections is of assistance to us in answering the questions that arise in this appeal.
22. In Atkin v DPP (1989) 89 Cr. App. R. 199, the Divisional Court quashed the appellant's conviction, under section 4(1) of the 1986 Act, of "[using] towards another person threatening, abusive or insulting words or behaviour … with intent to cause that person to believe that immediate unlawful violence would be used against him". Section 4(2) provides that "[an] offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used … by a person inside a dwelling and the other person is also inside that or another dwelling. …". Giving the leading judgment, Taylor L.J. concluded (at p.205) "that "the other person" in subsection (2), being the Customs and Excise officer, and that other person being inside the dwelling, the offence is not proved because all concerned within the ambit of the section are inside a dwelling". Henry J. observed (also at pp.205 and 206) that it was clear from the words of the exception in section 4(2) "that the intention of Parliament was to exclude domestic quarrels conducted within the home even in circumstances where such words or behaviour would, if repeated outside the dwelling[,] create an offence" and also that "to exclude such domestic quarrels from criminal liability attaching to such quarrels, even where the threat uttered, though spoken to the person sharing the dwelling[,] was related to violence against someone who was not in the dwelling at the time".
23. In Rukwira v DPP (1994) 158 J.P. 65 the Divisional Court upheld the appellants' convictions of an offence under section 4 of the 1986 Act, where the offence had been committed on one of the landings of a communal staircase in a block of flats. The court held that communal landings outside individual, self-contained flats in a block did not form "part of a person's home", or "part of the structure occupied as a person's home …" within the meaning of a "dwelling" in section 8. Macpherson J. accepted the prosecution's submission that common parts are not "part of the structure occupied as a person's home", and were not "living accommodation". He also accepted that section 4(2) of the 1986 Act was, as the prosecution contended, "intended to exclude incidents occurring within one's home, or between persons each within it".
24. In Francis the Court of Appeal held that a police cell is not a "home" or "other living accommodation" for the purposes of the definition in section 8 of the 1986 Act. The appellant in that case, when detained in a police cell, had allegedly made a racially obscene remark to a police officer who came into the cell, and had been charged with an offence of causing racially aggravated alarm or distress under section 4A of the 1986 Act and section 28 of the 1998 Act. The trial judge ruled that the police cell came within the exception for a "dwelling" in section 4A(2). Section 4A(1) provides that "[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 … thereby causing that or another person harassment, alarm or distress". Section 4A(2) provides that "[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".
25. Giving the judgment of the court, Moses L.J. said (in paragraphs 9 and 10):

"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."

26. In Le Vine v DPP [2010] EWHC 1128 (Admin) the appellant had been charged with, and convicted of, an offence contrary to section 4A(1) of the 1986 Act. He had allegedly gone into the laundry room in the basement of the sheltered accommodation where he and the complainant and others each had self-contained flats, shouting obscenities at the complainant. The Divisional Court dismissed his appeal from the magistrates' court and upheld his conviction. The crucial question, the court concluded, was whether the laundry room could properly be described as part of a structure which was occupied as part of the appellant's home. It held not. The laundry room was a communal room shared by those who lived in several homes in the building, but could not be regarded as part of the structure of any individual home.
27. Counsel for the appellant in that case had drawn attention to the legislative origins of section 4A of the 1986 Act, and in particular its predecessor, section 5 of the 1936 Act, which rendered criminal certain acts done with intent to provoke a breach of the peace, or by which a breach of the peace was likely to be occasioned, but only if they took place in any public place or at any public meeting. Counsel also pointed to the statement in paragraph 3(8) of the 1985 White Paper, "Review of Public Order Law", indicating that the Government did not want to extend the law into people's homes, and that "in order to exclude domestic disputes there will be a proviso that the offence cannot be committed inside a private dwelling house". Elias L.J. said (in paragraph 5) that he gained little assistance from the White Paper, and then this:

"5. … It is indeed plain from the legislation that the intention is not to criminalize unacceptable criminal behaviour of this kind, under [section] 4 at least, where it occurs in a dwelling, but the only safe guide for determining what the concept encompasses is, to my mind, to focus on the statutory definition itself. It does not assist to simply assert in a relatively loose way that this could properly be described as a domestic dispute."

28. Having referred to the Divisional Court's decision in Rukwira and the Court of Appeal's in Francis, he went on to say (in paragraph 7):

"7. I accept that the case is not as clear as Rukwira, precisely because the room is used for domestic purposes, but that is not a sufficient basis to engage [section] 8. The crucial question is still whether it can be described as part of a structure which is occupied as part of an appellant's home. I do not think it can be so properly described. In my judgment it is a communal room shared by those who live in a number of homes within the building, but cannot be properly described as part of the structure of any individual home in this building. I do not find this an unsatisfactory conclusion. The communal room is open to a number of persons. It is true it is limited to those who are in the flats or those connected with people in the flats, and to that extent it is only a small section of the public, but in my judgment the interpretation of the section I have given is compatible with a principle which is seeking to exclude disputes in people's homes, but not otherwise."

29. As section 5(2) of the 1986 Act states, and as has been emphasized in the case law, an offence under section 5 may be committed in a "private place". The one exception – for "a person inside a dwelling" where "the other person is also inside that or another dwelling" – is narrowly drawn. Parliament did not enlarge that exception to cover words or behaviour used by persons in domestic gardens as well as words or behaviour used by persons inside dwellings. The fact that a domestic garden is, or at least usually is, a "private place" certainly would not preclude an offence under section 5 being committed by persons who are in it. On the contrary, one of the more obvious "private" places in which one might contemplate an offence under section 5 being committed would be a domestic garden to the front or rear of a dwelling-house. Such a garden is – or at least usually will be – a "private place" used by the owners or occupiers of the property in question and those whom they invite or permit to be there, and from which the public are generally excluded. It is necessary, therefore, to consider whether in principle, and on the facts here, a domestic garden can be brought within the meaning of a "dwelling" in this statutory context.
30. The definition of a "dwelling" in section 8 of the 1986 Act is not an inclusive definition. A "dwelling" is defined as meaning, not merely as including, "any structure or part of a structure occupied as a person's home or as other living accommodation …". The definition excludes "any part" – which clearly means any part of a "structure" – that is "not so occupied". And it extends the concept of a "structure" to "a tent, caravan, vehicle, vessel or other temporary or movable structure". But a "dwelling", for the purposes of section 8 of the 1986 Act, must in the first place be something that can truly be described as a "structure" or "part of a structure". It follows therefore that if, on the particular facts, a garden cannot properly be regarded as a "structure" or "part of a structure", it will fall outside the definition of a "dwelling" in section 8, regardless of the remaining part of the definition. What then is a "structure" for these purposes? As counsel on both sides were, I think, content to accept, the word carries its ordinary English meaning. And in my view the most appropriate definition of a "structure" is to be found in the Oxford English Dictionary, 2^nd edition, namely "… [that] which is built or constructed: a. A building or edifice of any kind …".
31. Just as there are many kinds of dwelling, so too there are many kinds of garden. In the course of argument before us, the examples referred to ranged widely – from the gardens or park associated with a stately home such as Blenheim Palace to the relatively modest front and back gardens of suburban properties such as 72 Meadowcroft. In every case the facts will be different. One can of course envisage cases in which, for example, a roof garden or winter garden or some other form of garden contained within a residential building will be, as a matter of fact, an integral part of that building. In such a case, it may rightly be said that the garden in question is a "structure" or – perhaps more appropriately – "part of a structure". In my view, however, one would not ordinarily describe the garden to the front or rear of a suburban detached, semi-detached or terraced house in that way. Such a garden would not normally be regarded as a "structure", or as "part of a structure". I should add that a garden may of course contain various structures, such as a gazebo or summer house, an outhouse or shed, a greenhouse, a patio, a swimming pool or tennis court, a treehouse, a pergola or arbour, and so forth. But the presence of one or more such structures in a garden does not make the garden itself a "structure". Neither does the means of enclosure, such as the wall or fence around the garden, even though that wall or fence may itself be a "structure".
32. Thus far I have addressed only part of the definition of a "dwelling" in section 8. One must, however, take the definition as a whole. We are concerned here not merely with "any structure or part of a structure". We are concerned, rather, with the concept of "any structure of part of a structure occupied as a person's home or as other living accommodation", leaving aside "any part not so occupied". This concept, as the definition makes plain, is not confined to buildings; it also includes, specifically, "a tent, caravan, vehicle, vessel or other temporary or movable structure". And the provision concerns, specifically, a "structure" that is occupied as a "person's home" or "other living accommodation". The "structure" is what contains the accommodation in which the person lives. As the Court of Appeal emphasized in Francis (at paragraph 9 of its judgment), "[the] concept of other living accommodation takes its meaning from association with the concept of a person's home". The corollary holds good too. The concept of a person's "home" in this part of the definition must itself be understood as being his or her normal "living accommodation". The "home" is that "living accommodation". This, in my view, is the obvious sense of the expression "occupied as a person's home or as other living accommodation".
33. Even if, on particular facts, a garden to the front or rear of a dwelling-house could properly be regarded as being, in physical terms, a "structure" or "part of a structure" rather than merely an open space, it would not normally be regarded as being "a structure or part of a structure occupied as a person's home or as other living accommodation". The "structure" or "part of a structure" that is "occupied as a person's home or as other living accommodation" is – at least normally – the building or part of a building, typically a house or a flat, or some other form of "living accommodation", in which that person actually resides. A private garden to the front or rear of a dwelling-house may be, and may properly be described as, part of a "property". But it could not normally be described as being a "structure or part of a structure" inhabited by someone as his or her "home" or "other living accommodation". It is not, and is not part of, that "structure". And it is not "occupied" as a "home", or as other "living accommodation".
34. I also think my interpretation of the section 8 definition of a "dwelling" is consistent with the use of, and is reinforced by, the preposition "inside" in the expression "inside a dwelling" and the expression "inside that or another dwelling" in the exception in section 5(2). One would readily speak of a person being "inside" a building, or "inside" a house or flat. But one would not normally use the preposition "inside" when referring to a person who was in a garden, unless that person were "inside" a structure within the garden.
35. I do not think it can sensibly be said that a garden to the front or rear of a dwelling-house falls within the section 8 definition of a "dwelling" in the sense for which Mr Stone contended – either because, in his words, it "does form part of the structure of [the person's] overall home" or because it "forms part of the dwelling". Those concepts, in my view, distort the definition of a "dwelling" in section 8. Neither of them reflects the very precise language that Parliament has used. The section 8 definition is not framed in terms of "the structure of [the person's] overall home" – a somewhat imprecise expression in itself, and not the kind one would expect to see in a statute – or in terms of a "part of the dwelling".
36. The notion of the back garden at 72 Meadowcroft being "part of the dwelling", as opposed to "part of a structure occupied as a person's home …", clearly influenced the magistrates in their decision. They referred to it twice in their short reasons, as representing a "private" place in contrast to a "public" one. And that distinction – between, on the one hand, "a public place – open to anyone" and, on the other, "a private place and part of the dwelling" – seems to have been crucial in their approach. If it was crucial in their approach, they were, it seems to me, concentrating on the wrong question. The exception in section 5(2) of the 1986 Act is not for words or behaviour used in a "private place". It is for words or behaviour used by a person "inside a dwelling". The magistrates' reasons do not, I think, come to grips with the critical question for them, which was not whether the back garden at 72 Meadowcroft was "part of the dwelling", but whether the words allegedly used by Ms Distill when she was in that garden on 31 July 2016 were used by her when she was "inside a dwelling", as defined in section 8.
37. Unfortunately, the magistrates do not appear to have confronted that question. If they had done so, they could only properly have concluded on the facts before them that the alleged words – assuming Ms Distill did use them, which she denied – were not used by her when she was "inside a dwelling". So the exception in section 5(2) did not apply in this case.
38. I do not see any basis for a different conclusion in the decision of the Court of Appeal in Edwards and Roberts. In that case the court had to consider the meaning of the expression "in any public place" in section 5 of the Public Order Act 1936. Section 5 of the 1936 Act provided that "[any] person who in any public place … (a) uses threatening, abusive or insulting words or behaviour … with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence". Section 9(1) of the 1936 Act defined "[public] place" as including "any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise", and "[private] premises" as meaning "premises to which the public have access (whether on payment or otherwise) only by permission of the owner, occupier, or lessee of the premises". The court held that since the appellants, who had used the alleged insulting words or behaviour, and the person against whom those words had been directed were each in a private place, namely a private garden, and not, therefore, a public place within section 9(1) of the 1936 Act, they could not be guilty of the offences with which they were charged under section 5(1) of the 1936 Act. The court therefore allowed the appellants' appeals against conviction.
39. Bridge L.J., giving the judgment of the court, said (at p.231):

"… Approaching the matter quite independently of any authority, and looking simply at the contrasting definitions of public place and private premises in the statute, it seems to this Court that it is quite impossible to hold that the expression "public place" can be construed as extending to the front gardens of private premises simply on the footing on which the learned judge relied that members of the public have an implied licence to pass through those private gardens in order to obtain access to the front doors of private premises if they have some lawful occasion for so doing. It is not qua members of the public that they thus enjoy access, it is qua lawful visitors. Indeed it is certainly only by permission of the owner, occupier or lessee of the premises that persons obtaining access to front doors in the manner referred to are entitled to access. That would bring the front garden such as this within the definition of private premises in the statute as opposed to bringing it within the definition of public place."

40. The court found that understanding of the expression "public place" consistent with previous authority, including Wilson v Skeock (1949) 65 T.L.R. 418, Ward v Holman [1964] 2 QB 580, and Robson and Robson v Hallett (1967) 51 Cr. App. R. 307. Bridge L.J. went on to say (at p.233) that "[where], as here, both the person using the insulting words or behaviour and the person to whom they were directed, were in a private place, it seems to us that it was impossible for the Crown to show that there had been an offence". And when considering the question of whether a street could be "premises", he said (at p.234) that it was "difficult to think of any sense in which one could speak of a street as "premises" without embracing the houses as well as their gardens".
41. That analysis, as will be clear, was directed to the question of whether, under the relevant provisions of the 1936 Act, a private garden was, on the particular facts, properly to be regarded as "private premises" as opposed to a "public place". That question is not in issue before us, nor is it analogous to the questions we have to consider. Out task here is not to decide whether, in general or on the particular facts of this case, a private garden is, for the purposes of section 5(2) of the 1986 Act, a "public" place or a "private" place. It is to establish whether in this instance the alleged words, having allegedly been used in a private garden, were used by a "person inside a dwelling", as defined by section 8. That is a quite different question, in a different statutory context, from the question the Court of Appeal had to tackle in Edwards and Roberts. And the outcome I propose here is in no way inconsistent with the result of that appeal or the reasoning on which it was based.
42. Finally, I do not think we can gain any assistance in construing sections 5 and 8 of the 1986 Act from the provisions of section 623(2) of the Housing Act 1985 and section 63(1) of the Housing Act 1995. Those provisions belong to a different statutory regime. But it is to be noted that the definition of a "dwelling-house" in section 623(2) of the 1985 Act is an inclusive definition in which the legislature has deliberately inserted "any yard, garden, outhouses and appurtenances belonging to [the dwelling-house] or usually enjoyed with it". There would have been no need to do that if the normal understanding of the concept of a "dwelling-house" included a "garden". A similar observation can be made about the definition of a "dwelling" in section 63(1) of the 1995 Act as a "building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it". If the normal understanding of the concept of a "dwelling" included a "garden", there would have been no need to add to the definition, by using the words "together with …", a specific reference to a "garden".
43. In my view, therefore, which is strengthened by the consistent reasoning in those authorities, the construction of section 5 of the 1986 Act contended for by the DPP in this appeal is correct. Generally – though I would not go so far as to say that this will necessarily be so in every case – the concept of a "dwelling" as defined in section 8 of the 1986 Act, for the purposes of the exception in section 5(2) of that Act, will not include a domestic garden to the front or rear of a dwelling-house. Whether or not this is so will always depend on the particular facts and circumstances of the case in hand. In some cases it will not be so; in others it will. In this case, however, on the simple and uncontroversial facts presented to us, I am of the view that the back garden at 72 Meadowcroft – and, likewise, the back garden at 74 Meadowcroft – did not come within the section 8 definition of a "dwelling", and that the magistrates were wrong to conclude that it did.

The answers to the questions in the case stated

44. It follows that my answer to each of the questions in the case stated is "No".
45. As to the first question, the magistrates' court was not right when it ruled that the alleged incident had taken place "inside a dwelling", as defined by section 8 of the 1986 Act, for the purposes of section 5(2).
46. And as to the second, in the circumstances the magistrates' court was not correct in coming to the conclusion that Ms Distill had no case to answer.

Conclusion

47. I would therefore allow this appeal.

Mrs Justice McGowan

48. I agree.