Can public order offences be committed in a garden?

09 October 2019

Not reviewed after the date of publication

Question:

In relation to public order offences, there is a 'dwelling defence', in that these offences cannot be committed where both parties are inside a dwelling. If both parties are in their gardens, does that fall under this defence (i.e. is a garden part the dwelling)? Additionally, if a person knocks on the front door of a dwelling and is then abusive to the person who answers the door, can a public offence be committed, or are they both deemed to be inside a dwelling?

Answer:

The offences contained under sections 4, 4A and 5 of the Public Order Act 1986 can be committed in a public or a private place, but not a dwelling.

Specifically, the offences cannot be committed in circumstances where:

1. the person using the words / behaviour etc. is inside a dwelling, and
2. the person to whom the conduct is directed is inside that dwelling or another dwelling

The definition of 'dwelling' for the purpose of the 'dwelling defence' referred to, is provided by section 8 of the Public Order Act 1986 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 his purpose 'structure' includes a tent, caravan, vehicle, vessel or other temporary or movable structure'

Chapter 16 of Archbold's Magistrates' Court Criminal Practice Guide 2019 provides guidance regarding how the definition of dwelling has been / can be interpreted, for the purpose of making out the defence, providing the following cases as examples of how 'dwelling' has previously been interpreted by the courts:

  • Francis 2007 – a dwelling does not include a police cell
  • Le Vine v DPP 2010 – a communally used laundry room within self-contained flats is not a dwelling

Of most relevance to this query, is the case of DPP v Distill 2017. This case was similar in facts to the example you have provided, involving an individual using threatening words in the back garden of her grandmother's property, which were heard by the next door neighbours of another property – also in their back garden at the time. In this case, it was stated that generally, the concept of 'dwelling' would not be interpreted to include a domestic garden to the front or rear of a dwelling house, explaining that a dwelling has to be something that could 'truly be described as a structure or part of a structure' i.e. something built or constructed. It could not be stated in the circumstances that the words used by the individual had been said whilst she was inside a dwelling, towards an individual in another dwelling and therefore, the defendant was unable to rely on the defence.

Arguably, this is also likely to extend to the pathway of a property. In our opinion, it would be reasonable to interpret a pathway in front of a house as being part of the domestic garden area / general front area of a house, meaning that whilst the person answering the door may be deemed to be inside a dwelling, the person outside the property would not be, and so the defence is unlikely to apply.

Given that the locations outlined in the query are unlikely to fall under the definition of dwelling, it is our opinion that public order offences may potentially be made out in the circumstances (the specific offence committed being dependant on the full facts).

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