Our member Jimmy Avasia was delighted by R v Francis [2007] 1 WLR 1021.

Carlene Francis, the defendant, was alleged to have made a racially obscene remark to a police officer who came into the police cell where Francis was detained. Francis was charged with causing racially aggravated alarm or distress under Section 4A of the Public Order Act, 1986. She was brought before the Crown Court at Leicester.

Section 4A says it is an offence if, with intent to cause a person harassment, alarm or distress, a person threatens, abuses or insults another by words, behaviour or any visible representation. The section also says that the offence may be in a public or private place, except if done inside a ‘dwelling’ and the victim of the offence is also in that, or any other, ‘dwelling’.

Section 8 defines a ‘dwelling’ as any structure (or part thereof) occupied as a home or as other living accommodation and includes a tent, caravan, vehicle, vessel or other temporary or movable structure.

Mr James House, solicitor, appeared for the Defendant. His defence was that there could be no offence because the police cell was “other living accommodation” and hence covered by the exception.

Mr House succeeded in the trial court on this defence.

The judgement of the Court of Appeal was delivered by Moses, LJ with his tongue quite firmly in his cheek.

8. Mr House, with admirable persistence, submits that a 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.

Moses, LJ then goes on to consider whether a police cell is, in fact, other living accommodation.

10. A police cell is a place where a person is detained in custody, not a place which a person occupies as a living accommodation.

Why and how did the trial court err? According to the Appeal Court:

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.

No stricture could be more elegantly or gently worded.

And, finally, saving the best for last:

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.

A footnote (again thanks to the redoubtable Avasia). The Appeal Court erred too. Miles Davis was never a member of the Modern Jazz Quartet. Is that an error apparent on the face of (forgive me for this) the record?