Public Order Offences 2

Update 5th August - May-Bowles appealed and sentence cut to 4 weeks imprisonment - BBC


Update 2nd August:   For the assault, Jonathan May-Bowles was sentenced to 6 weeks imprisonment + Costs £250.  He would serve 3 weeks in actual custody.  He says that he will appeal.  BBC News 2nd August.  See also Lawpages


Update 29th July - Jonathan May-Bowles, pleaded guilty to assault as well as a public order offence.  District Judge Daphne Wickham adjourned the case for a pre-sentence report.  The possibility of imprisonment (for the assault) was not ruled out.  Guardian 29th July.

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On Tuesday 19th July, an incident occurred as Rupert Murdoch was giving evidence to the House of Commons Culture, Media and Sports Committee - see The Independent 20th July.   A man has been charged with causing harassment, alarm or distress contrary to section 5 of the Public Order Act 1986.    That case comes before Westminster Magistrates' Court on 29th July.  Let us look further at the 1986 Act.

The post immediately below looked at the more serious offences under the Public Order Act 1986  - riot, violent disorder and affray.  This post considers three further offences - section 4 (Fear or provocation of violence), s4A (Intentionally causing harassment, alarm or distress) and s.5 (Harassment, Alarm or Distress).  The s.4A offence was inserted into the 1986 Act by the Criminal Justice and Public Order Act 1994 s.154.

Public Order Act 1986 s.4 - Fear or Provocation of Violence - link

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, (c) 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, (d) or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.   Generally, this offence can be committed in a public or private place - but see section 1(2) regarding conduct in "dwellings."   This offence is triable summarily only and carries a maximum sentence of 6 months imprisonment or a fine up to £5000.  A considerable amount of case law exists on the interpretation of elements in this offence.

There is an aggravated version of this offence - Crime and Disorder Act 1998 (as amended, from 14th December 2001, by the Anti-Terrorism, Crime and Security Act 2001).  The aggravation must take the form of racial or religious aggravation.  The aggravated offence is triable either-way and, when tried in the Crown Court, carries a maximum of 2 years imprisonment.   

Public Order Act 1986 s.4A - Intentionally causing harassment, alarm or distress - link

A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he - 

(a) uses threatening, 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.

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 displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.

Section 4A(3) enacts a specific defence.

It is a
defence for the accused to prove -

(a) 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

(b) that his conduct was reasonable.

Again, the offence is triable summarily by Magistrates and carries a maximum sentence of 6 months imprisonment or a £5000 fine.  There is an aggravated version of the offence which is triable either-way.

Public Order Act 1986 s.5 - Harassment, Alarm or Distress - link

A person is guilty of an offence if he -

(a) uses threatening, 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,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Again, the offence may be committed in public or private places - see section 5(2) regarding "dwellings."

Section 5(3) provides a specific defence. 

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.

The offence is triable summarily by Magistrates and carries a maximum penalty of a £1000 fine.  There is an aggravated version of the offence; triable summarily only and which carries a fine up to £2500.

The section 5 offence appears frequently in magistrates' courts and has given rise to a body of case law.  Clearly, the offence is aimed at a considerable range of conduct.  It is not limited to rowdy behaviour - Vigon v DPP 1998 (hiding camera in a swimming pool changing area - held to be insulting behaviour).  A sign displayed by an evangelical preacher saying "Stop immortality; stop homosexuality; stop lesbianism" was held to be insulting and the defendant did not have a defence of reasonable conduct: Hammond v DPP [2004] EWHC 69.  Another interesting case is that of the naked photographer: Holloway v DPP [2004] EWHC 2621 (Admin).

The defence of reasonable conduct has to be proved objectively: DPP v Clarke 1992.  This aspect of the offence has engaged the European Convention on Human Rights.  In Percy v DPP 2002 the question was whether freedom of expression was infringed.  The defendant had burned an American Flag during a protest.  In Norwood v DPP [2003] EWHC 1564 the question was whether a poster, displayed on the window of a flat, was contrary to section 5.  The poster stated "Islam out of Britain" and the police received a complaint.  It was held here that Article 10 rights had not been infringed since it was right in these circumstances that freedom of expression be curtailed in order to protect the public interest.

Earlier this year there was the case of Abdul and others v DPP [2011] EWHC 247 (Admin) which was considered by Law and Lawyers on 17th February - Rights also entail responsibilities.

Mental element and intoxication:  The Public Order Act 1986 s.6 addresses the mental element required for the section 4 and 5 offences - see, respectively, s.6(3) and 6(4).  Intoxication is dealt with by section 6(5).

Note: the incident at the Parliamentary committee is now before the courts.  Please do not comment on that case.