Few words can have been the subject of more judicial analysis over the years than ‘dwelling’. In the latest example, the High Court has ruled that a suburban garden does not form part of a dwelling for the purposes of the Public Order Act 1986.
The case concerned a woman who was accused of racially abusing a man over the fence of her mother’s garden. Section 5(2) of the Act provides that an offence of using threatening or abusive words or behaviour cannot be committed when the alleged perpetrator and the alleged victim are both inside a dwelling house.
The woman was cleared by magistrates on the basis that the adjoining gardens were each part of the dwelling houses that they served. However, the Director of Public Prosecutions (DPP) disagreed and appealed on the basis that the case raised an important point of law on which the magistrates had erred.
The Act defines a dwelling as any structure, or part of a structure, occupied as a person's home and it was submitted by the DPP that that could not conceivably include a suburban garden. However, the woman’s lawyers argued that anyone sunbathing in their garden would consider themselves at home.
In upholding the DPP’s appeal, the Court queried whether the grounds of Blenheim Palace could be viewed as part of a dwelling house or whether someone who stole a gnome from a garden could be described as a burglar. If the magistrates were right in their interpretation of the Act, anyone could say whatever they liked in their gardens, as loudly as they wished, with impunity.
The Court found that it could not sensibly be argued that a garden to the front or rear of a dwelling house falls within the definition of a 'dwelling'. The gardens in question were not part of the structure of the houses and the magistrates were wrong to conclude that the woman had no case to answer. The case was remitted to the magistrates for reconsideration in the light of the Court’s ruling.
Director of Public Prosecutions v Distill. Case Number: CO/1772/2017