Public Order Offences Flashcards
OFFENCE
Affray—Public Order Act 1986, s. 3
- Triable either way
- Three years’ imprisonment and/or a fine on indictment
- 12 months’ imprisonment and/or a fine summarily
The Public Order Act 1986, s. 3 states:
(1)
A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.
(2)
Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).
(3)
For the purposes of this section a threat cannot be made by the use of words alone.
(4)
No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(5)
Affray may be committed in private as well as in public places.
Affray
The House of Lords held that, in order to prove the offence of affray, the threat of unlawful violence has to be towards a person(s) present at the scene (I v DPP [2001] UKHL 10). Once this element has been proved, it will be necessary to prove the second element, namely, whether the defendant’s conduct would have caused a hypothetical person present at the scene to fear for his/her personal safety (R v Sanchez (1996) 160 JP 321 and R v Carey [2006] EWCA Crim 17). However, where the likelihood of a hypothetical person of reasonable firmness being present was low this element of the offence was not satisfied. In R (On the Application of Leeson) v DPP [2010] EWHC 994 (Admin), a woman had issued a drunken threat to kill her long-term partner while holding a knife, in a bathroom, in an otherwise unoccupied house. In these circumstances, the court held that there was no possibility of hypothetical bystanders fearing for their safety.
Where the accused is one of a number of people who use or threaten unlawful violence, in deciding whether the person of reasonable firmness present at the scene would be caused to fear for his personal safety, it is the conduct of the entire group taken as a whole that counts and so there is no need in such a situation for the court to attribute individual roles to the participants (Dragjoshi v Croydon Magistrates’ Court [2017] EWHC 2840 (QB)).
The threat cannot be made by words alone (s. 3(3)), therefore there must be some action by the defendant—even if that ‘action’ consists of utilising something else such as a dog to threaten the violence (R v Dixon [1993] Crim LR 579).
The effect of s. 3(4) is that it is not necessary to show that the defendant’s behaviour either was or could have been seen by someone at the time.
Although violence is ‘not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct’ (s. 8), the expression does not include conduct towards property as it does with the offences under ss. 1 and 2.
Once more, a defendant must be shown to have intended to use/threaten violence or to have been aware that his/her conduct may have been violent (s. 6(2)).
Offence
Fear or Provocation of Violence—Public Order Act 1986, s. 4
- Triable summarily
- Six months’ imprisonment and/or a fine
Offence
Racially or Religiously Aggravated—Crime and Disorder Act 1998, s. 31(1)(a)
- Triable either way
- Two years’ imprisonment and/or a fine on indictment
- 12 months’ imprisonment and/or a fine summarily
The Public Order Act 1986, s. 4 states:
(1)
A person is guilty of an offence if he—
(a)
uses towards another person threatening, abusive or insulting words or behaviour, or
(b)
distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting,
with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.
(2)
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, or the writing, sign or other visible representation is distributed or displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.
Fear or Provocation of Violence
The meaning of ‘racially or religiously aggravated’ in relation to s. 31(1)(a) of the 1998 Act is discussed in chapter 2.6.
‘Immediate’ unlawful violence does not have to be instantaneous but it must be shown that the defendant’s conduct was likely to lead to more than some form of violence at some later date. ‘Immediate’ here requires some close proximity between the acts of the defendant and the apprehended violence, with no intervening occurrence.
There are a number of ways in which this offence can be committed (see below). In all of these, however, there must be the use of threatening/abusive/insulting words or behaviour (or distribution/display of writing, signs etc.). This must be carried out with the requisite state of mind set out at s. 6(3) which states:
(3) A person is guilty of an offence under section 4 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting.
In addition, it must be shown that the person further intended to bring about the consequences set out below (at (a) and (b)) or that the consequences (at (c) and (d)) were likely.
In relation to s. 4(1)(b), ‘writing’ includes typing, printing, lithography, photography and other modes of presenting or reproducing words in a visible form (Interpretation Act 1978, s. 5 and sch. 1).
In the case at (a) above, it does not have to be shown that the other person actually believed that immediate violence would be used; it has to be shown that the defendant intended to cause him/her to believe it (Swanston v DPP (1997) 161 JP 203).
The person in whom the defendant intends to create that belief must be the same person at whom the conduct is directed (Loade v DPP [1990] 1 QB 1052).
Section 4(2) provides that this offence cannot be committed by persons inside a dwelling. ‘Dwelling’ is defined 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 this purpose ‘structure’ includes a tent, caravan, vehicle, vessel or other temporary movable structure (s. 8). A person who shouted a racially aggravated comment from her garden at a person in a neighbouring garden had not been ‘inside a dwelling’ (DPP v Distill [2017] EWHC 2244 (Admin)).
The offence was broken down into four component parts in Winn v DPP (1992) 156 JP 881. For each of these parts it must be shown:
(a) that the defendant:
* intended the person against whom the conduct was directed
* to believe
* that immediate unlawful violence would be used
* either against him/her or against anyone else
* by the defendant or anyone else; or
(b) that he/she:
* intended to provoke the immediate use of unlawful violence
* by that person or anyone else; or
(c) that:
* the person against whom the words or behaviour (or distribution/display of writing etc.) were directed
* was likely to believe
* that immediate unlawful violence would be used; or
(d) that it was likely that immediate unlawful violence would be provoked.
Offence
Intentionally Causing Harassment, Alarm or Distress—Public Order Act 1986, s. 4A
- Triable summarily
- Six months’ imprisonment and/or a fine
Offence
Racially or Religiously Aggravated—Crime and Disorder Act 1998, s. 31(1)(b)
- Triable either way
- Two years’ imprisonment and/or a fine on indictment
- 12 months’ imprisonment and/or a fine summarily
The Public Order Act 1986, s. 4A states:
(1)
A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—
(a)
uses threatening or abusive or insulting words or behaviour, or disorderly behaviour, or
(b)
displays any writing, sign or other visible representation which is threatening, abusive or insulting,
thereby causing that or another person harassment, alarm or distress.
Intentional Harassment, Alarm or Distress
For the purpose of the racially or religiously aggravated form of causing fear or provocation of violence, any words used by the defendant have to be construed within the meaning that they are given in England and Wales. In construing those words, the courts should not have any regard to the defendant’s own racial, national or ethnic origins—or presumably their religious beliefs or lack of such (R v White (Anthony Delroy) [2001] EWCA Crim 216).
In order to prove this offence you must show that the defendant intended to cause harassment, alarm or distress and, it seems, that by so doing, the defendant actually caused some harassment, alarm or distress. In Steele v DPP [2008] EWHC 438 (Admin), the defendant took a digital photograph of the complainant and posted it on the internet with a speech bubble and text alleging the complainant had previous convictions for violence. It was several months later that the photograph was shown to the complainant by the police and the Divisional Court held that the time and the circumstances in which it had been brought fully to the attention of the complainant were immaterial.
Harassment, alarm or distress are not defined and it would appear that they are to be given their ordinary everyday meaning. A police officer can be caused such harassment, alarm or distress (DPP v Orum [1989] 1 WLR 88), and can also be the victim of the racially aggravated form of the offence (R v Jacobs [2001] 2 Cr App R(S) 38), and he/she can feel that harassment, alarm or distress for someone else present (e.g. a child (Lodge v DPP [1989] COD 179)). Police officers are expected to display a degree of fortitude and, for an officer to be caused harassment, alarm or distress, the conduct complained of must go beyond that which he/she would regularly come across in the ordinary course of police duties.
Whether the use of a particular phrase, in the context and circumstances in which it was used, was intended to cause harassment, alarm or distress for the offences above is a question of fact for the relevant magistrate/jury to decide (DPP v Weeks (2000) The Independent, 17 July). Consequently, in that case where the defendant was alleged to have called the victim a ‘black bastard’ during a heated argument over a business transaction, the magistrates were still entitled to find him not guilty of the aggravated s. 4A offence if they were satisfied that the relevant intention was not present.
In R v Valentine [2017] EWCA Crim 207 the Court of Appeal held that where racial hostility was directed at someone who was not the victim, the elements of ‘racially aggravated’ were not made out.
Posting a threatening, abusive or insulting letter through someone’s letter box is not an offence under this section (Chappell v DPP (1989) 89 Cr App R 82). It may, however, amount to an offence under the Malicious Communications Act 1988 (see para. 2.5.4).
It is a defence for a person to prove 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 building or that his conduct was reasonable (s. 4A(3)). For the definition of dwelling, see para. 2.13.3.
It is for the defendant to prove that one of the elements existed at the time of the offence. The standard of proof here will be that of the balance of probabilities, i.e. that it was more likely than not.
Offence
Harassment, Alarm or Distress—Public Order Act 1986, s. 5
- Triable summarily
Fine
Offence
Racially or Religiously Aggravated—Crime and Disorder Act 1998, s. 31(1)©
- Triable summarily
- Fine
The Public Order Act 1986, s. 5 states:
(1) A person is guilty of an offence if he— (a) uses threatening or abusive words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening or abusive, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
Harassment, Alarm or Distress
Unlike the other racially or religiously aggravated forms of public order offences, the offence under s. 5 remains triable summarily, even if aggravated by the conditions set out in s. 28 of the Crime and Disorder Act 1998 (s. 31(5)).
In a case where the defendant used the words ‘You’re fucking Islam’ in an aggressive manner towards a Sikh police officer of Asian appearance, the Divisional Court held that the expression itself was almost undeniably abusive if not insulting (R (On the Application of DPP) v Humphrey [2005] EWHC 822 (Admin)).
In Kendall v DPP [2008] EWHC 1848 (Admin), British National Party posters showing a photograph of three black men with the caption ‘Illegal Immigrant Murder Scum’ were found to be threatening, abusive and insulting and racially aggravated. In Abdul v DPP [2011] EWHC 247 (Admin), it was held that a prosecution under this section was a proportionate response to a group of protesters carrying placards and chanting slogans such as ‘British soldiers burn in hell’ and calling the soldiers murderers, rapists and baby killers, during a parade to celebrate soldiers returning from Afghanistan.
Note that ‘disorderly’ is not defined and ought to be given its ordinary everyday meaning. It need not be shown that the disorderly behaviour is itself threatening, abusive or insulting, nor that it brought about any feelings of apprehension in the person to whom it was directed (Chambers and Edwards v DPP [1995] Crim LR 896). The wording of s. 5 is not limited to rowdy behaviour and will extend to any behaviour that could be construed as threatening or abusive.
There must be evidence that there was someone present who could see or hear what the accused was doing, though there was no requirement for the prosecution to call evidence to this effect (Taylor v DPP [2006] EWHC 1202 (Admin)).
In Overd v Chief Constable of Avon and Somerset Constabulary [2021] EWHC 3100 (QB), members of the public complained to the police about a group of four evangelical Christians causing a disturbance by preaching racist and anti-Islamic statements. The court held that because of the complaints made to the police, the hostile crowd, the preaching of hate by the group and ongoing preaching, there were reasonable grounds for suspecting that there had been anti-social behaviour capable of falling within s. 5.
As with the offence under s. 4A (see para. 2.13.4), there is nothing to stop the person likely to have felt harassment, alarm or distress from being a police officer acting in the course of his/her duty, but of course one has to be cautious about making such a finding, because police officers are expected to show a certain degree of resilience (Williams v CPS [2018] EWHC 2869 (Admin)).
A person is only guilty of an offence under this section if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening or abusive, or is aware that it may be threatening or abusive or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly (s. 6(4)).
This offence is a ‘penalty offence’ for the purposes of s. 1 of the Criminal Justice and Police Act 2001.
This offence can be committed in a public or private place but not where the words or behaviour are used by a person inside a dwelling and the other person is inside that or another dwelling (s. 5(2)). For the definition of dwelling, see para. 2.13.3.
The Public Order Act 1986, s. 5 states:
(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.
Defences
It is for the defendant to prove that one of the elements existed at the time of the offence. The standard of proof here will be that of the balance of probabilities, i.e. that it was more likely than not.
In deciding whether a defendant’s conduct was reasonable under s. 5(3)(c) an objective test will be applied (DPP v Clarke (1992) 94 Cr App R 359).
The relationship between the Public Order Act 1986, s. 5(1), Article 10 of the European Convention on Human Rights and the supposed ‘right’ to go naked in public was considered in the ‘naked rambler’ case, Gough v DPP [2013] EWHC 3267 (Admin). It was held that the appellant foresaw the consequence of his voluntary decision to walk naked through a town centre and was at least aware that his behaviour may have been threatening, abusive, insulting or disorderly. Thus the intent required by the legislation was proved.
Offence
Intentionally or recklessly causing public nuisance—Police, Crime, Sentencing and Courts Act 2022, s. 1(4)
- Ten years’ imprisonment and/or a fine
- Twelve months’ imprisonment and/or a fine summarily
The Police, Crime, Sentencing and Courts Act 2022, s. 78 states:
(1)
A person commits an offence if—
(a)
the person—
(i)
does an act, or
(ii)
omits to do an act that they are required to do by any enactment or rule of law,
(b)
the person’s act or omission—
(i)
creates a risk of, or causes, serious harm to the public or a section of the public, or
(ii)
obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and
(c)
the person intends that their act or omission will have a consequence mentioned in paragraph (b) or is reckless as to whether it will have such a consequence.
(2)
In subsection (1)(b)(i) ‘serious harm’ means—
(a)
death, personal injury or disease,
(b)
loss of, or damage to, property, or
(c)
serious distress, serious annoyance, serious inconvenience or serious loss of amenity.
(3)
It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the act or omission mentioned in paragraph (a) of that subsection.
