Senior judges yesterday over-ruled a youth court's finding that a small boy unlawfully caused "distress" to a burly police constable by swearing at him and making obscene gestures.
Lord Justice Richards, sitting with Mr Justice Toulson at the High Court in London, described how "R", who cannot be named for legal reasons, was aged 12 and just 4ft 9in tall.
Fareham youth court found he had committed an offence contrary to the 1986 Public Order Act by causing "distress" to Pc 1292 Richards, who is 6ft 1in tall and weighs 17.5 stone.
The Act makes it an offence to use threatening, abusive or insulting words or behaviour with intent to cause harassment, alarm or distress.
Pc Richards had told the youth court at a hearing in October 2005 that R had "offended and distressed" him by shouting abuse at the police van he was in as they drove off.
The boy's sister had just been arrested on suspicion of an offence of criminal damage around 3.30am on Monday, August 8, 2005, an allegation never pursued.
The judges heard how, as the officers left the scene, R put his right arm in the air and made masturbatory gestures towards the officers, simultaneously swearing.
The van stopped and Pc Richards emerged and arrested the boy. Pc Richards said in evidence to the youth court R was "clearly making obscene gestures towards officers in the van with hand held in the air.
Pc Richards said: "I was offended by it.
"He was a very young, small lad but he was abusive and had been told to calm down and nobody seemed able to control him.
"I found it offensive that a lad or anybody, particularly a lad of that age with a parent, would voice those opinions and make those gestures towards uniformed police officers."
Pc Richards said he was involved in high-visibility patrols at Southsea seafront, and if the expression "wankers" had ever been said to him " that person has been arrested".
He said he was "not personally" annoyed but found it distressing that a lad of that age "was out at that hour and acting in that manner".
The youth court found R guilty of causing Pc Richards distress and sentenced him to a six-month conditional discharge.
Overturning the youth court's decision, the High Court judges ruled that the offence taken by Pc Richards, an experienced police officer, was not sufficient in law to cause a breach of the public order laws.
Mr Justice Toulson said of the incident: "The officer did not suggest the behaviour caused him to suffer emotional disturbance.
"R was 4ft 9in and the police officer was over six feet tall and weighed over 17 stone. There has to be something that really leads to emotional disturbance or upset."
The judge ordered the finding of guilt against R to be quashed.