Tuesday, 19 July 2011

Public Order Offences 1: the Gilmour case

English law has a considerable range of criminal offences aimed at "public order."  This post takes a look at the more serious offences defined by the Public Order Act 1986.

Background to the 1986 Act:

The Act was the ultimate outcome of a series of events dating back to the 1970s.  The Red Lion Square demonstration against the National Front in 1974 and Lord Scarman's subsequent inquiry (Cmnd 5919, 1975).  In 1981 there was rioting in Brixton and Lord Scarman was asked to do a further report (Cmnd 8427, 1981).  Industrial disputes raised further issues - especially the miner' strike of 1984/5.  In 1983, the Law Commission  reviewed public order offences and proposed significant amendments - ( Criminal Law: Offences Relating to Public Order (Law Com No. 123, 1983) - (considered here).   A White Paper followed in 1985 - Review of Public Order Law (Cmnd 9510) and this  formed the basis of the 1986 Act which finally placed public order law almost entirely on a statutory basis.  Previously, the law had been a complex and untidy mixture of common law offences (e.g. riot, rout, unlawful assembly, affray etc) and statute law (e.g. Public Order Act 1936).

Common law powers relating to "breach of the peace" remain in force and are used extensively.  See, for example, Law and Lawyers 1st May 2011.

The Criminal Justice and Public Order Act 1994 Part V extended public order law - e.g. by sections aimed at "raves" (sections 63-66); "trespassory assemblies" (sections 70-71) etc.

The Public Order Act 1986 (‘POA’) did two principal things. First, it provided a framework of controls which apply to processions and demonstrations. These are aimed at the events themselves, and if, when, and how, they should take place.  Secondly, it enacted a range of offences to deal with disorderly conduct of various degrees of seriousness, from riot, to behaviour causing alarm or distress.

The more serious offences:  Riot, Violent Disorder and Affray

Riot - Public Order Act 1986 s.1 -

Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot.  (This definition is amplified further in section 1 subsections 2 to 5.  The offence is triable only in the Crown Court and carries a maximum sentence of 10 years imprisonment.

Violent Disorder - Public Order Act 1986 s.2 -

Where 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using or threatening unlawful violence is guilty of violent disorder.  (This is amplified in section 2 subsections 2 to 4.  The offence is an "either-way" offence.  In the Crown Court the maximum sentence is 5 years imprisonment.  In the Magistrates' Court the maximum is 6 months imprisonment or a maximum fine of £5000.  Magistrates' Courts rarely accept jurisdiction over this offence). 

Affray - Public Order Act 1986 s.3 -

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.  (The offence is amplified in section 3 subsections 2 to 5.  It is an either-way offence.  In the Crown Court, the maximum sentence is 3 years imprisonment.  In the Magistrates' Court the maximum is 6 months imprisonment or a maximum fine of £5000.  Magistrates' Court sentencing guidance (page 85) indicates the type of case which might be dealt with in those courts.  The offence of affray was considered by the House of Lords in I and another v DPP [2001] UKHL 10).

The "person of reasonable firmness" 

The definitions of all 3 offences refers to the person of reasonable firmness.   This may be viewed as the standard of disorderliness and it requires consideration of the likely effect of the behaviour on the average adult who might be present.   It excludes the particularly timid, or the especially bold.   However, no such person has actually to be present or even likely to be present.  It is a hypothetical test.

Richard Stone in "Textbook on Civil Liberties and Human Rights" Chapter 7 - suggests that if - "people who could be categorised as ‘persons of reasonable firmness’ were actually present, no doubt their evidence as to the effect of the behaviour on them would be very relevant. On the other hand, the fact that an elderly person, or child, was in fact frightened by the behaviour does not turn it into a riot, if a person of reasonable firmness would not have been so affected.   The fear has to be for the person of reasonable firmness’s own safety; fear as to what might happen to the participants, their victim (if any), or other persons present is not relevant. In theory, this seems a reasonable standard to apply. People should not be put in terror by the violent activities of others. In practice, however, it may be difficult to assess exactly what level of behaviour has such an effect, particularly where there were no ‘reasonably firm’ people present at the time."

In public and in private places:  

These offences may be committed in private as well as public places.

The Mental element required for the offences and intoxication:

On a reading of the definitions in sections 1, 2 and 3 it might be thought that these offences did not require proof of any mental element.  It is section 6 which defines the required mental element.   Section 6(1) states - "A person is guilty of riot only if he intends to use violence or is aware that his conduct may be violent and, by 6(2) - "A person is guilty of violent disorder or affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence."

The question of intoxication is addressed by section 6(5) - "For the purposes of this section a person whose awareness is impaired by intoxication shall be taken to be aware of that of which he would be aware if not intoxicated, unless he shows either that his intoxication was not self-induced or that it was caused solely by the taking or administration of a substance in the course of medical treatment."   6(6) - in subsection (5) “intoxication” means any intoxication, whether caused by drink, drugs or other means, or by a combination of means.  This places a burden on the defendant who argues that his awareness was impaired by intoxication.


It is clear that the offences carry heavy maximum sentences but maximum sentences are primarily there for the worst cases.  The Sentencing Council has responsibility for the preparation of guidance.  Regrettably, none has been prepared for use in the Crown Court in relation to these offences.  The Magistrates' Courts Sentencing Guidelines offer some guidance for violent disorder and fuller guidance for affray.  Sentencing in the Crown Court is therefore in the discretion of the judge who would be guided by (a) general sentencing considerations and (b) any previous appeal cases.  The CPS website offers some information for riot, violent disorder and affray

General sentencing considerations for adult offenders are essentially those set out in the Criminal Justice Act 2003 Part 12 especially sections 142-146 (Matters to be taken into account), 152 and 153 (General restrictions on discretionary custodial sentences) and 174 (Duty of court to give reasons for a sentence and to explain its effect.  The matters to be taken into account include the aims of sentencing (s142) which are - punishment, reduction of crime (including its reduction by deterrence), reform and rehabilitation, protection of the public, making of reparation.

The Gilmour case:

A recent example of sentencing for Violent Disorder is shown by the Gilmour case which arose from protests, in December 2010, against student fee increases.   Media reports on the case are available at The Guardian and also a collection of reports in The Independent.   Gilmour, aged 21 entered a guilty plea in May.  He  received a sentence of 16 months imprisonment.  This sentence seems to be based purely on deterrence alone - i.e. to deter others from similar conduct.  Gilmour very probably deserved to hear the "clang of the prison gates" but a shorter sentence (6 to 8 months) would surely have sufficed.

Media and similar stories:

Fortnum and Mason protest: CPS drops charges - The Guardian 18th July


  1. I would be interested to understand the balanced and evidenced arguments that lead you to your conclusions in the final two sentences.

    Appologies for the anonymous post, I can not get my logins to work, Rolo Tamasi

  2. As pointed out in the blogpost, there are no sentencing guidelines for this offence. As far as I can see, he was a first time offender who pleaded guilty early on and some personal mitigation was advanced by his counsel. His conduct was reprehensible with the violent disorder being made up a number of distinct elements carried out during a course of conduct. The Cenotaph business - (which the Judge lectured Gilmour about) - was not actually part of the conduct with which he was charged - (The Judge said so). However, mention of him swinging from a flag has inflamed public opinion against him and is very likely a factor in the calls for a heavy sentence.

    I have no doubt that the balance in all of this called for a custodial sentence. Such sentences have to be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence,.... CJA 2003 s153.

    I would accept that s.153 is somewhat a matter of opinion. However, whilst he deserved to hear the clang of the prison gates, he did not, in my honest view, deserve 16 months. (Actually 2 years less discount for guilty plea - assuming he was allowed a one-third discount).

    Perhaps the "unspoken factor" in the sentence is that someone had to be made an example of given that one of the cars was carrying Prince Charles.

    The likely impact of imprisonment on the offender is also something to bear in mind. Judges should have good knowledge of the kind of culture which exists within the prison system. individuals like Gilmour - ("toffs" some might call them) - are likely to be given an exceptionally hard time in prison if other inmates get half a chance.

    I don't intend to try to justify my view any further but I am happy to have stated it even if I state it alone! Of course, we all need to remember that we were not present in court; did not see Gilmour's demeanour in court and we were not a party to any pre-sentence report.

  3. Ed (not Bystander)21 July 2011 at 23:20


    May I humbly suggest avoiding constructions like "would surely have sufficed"? If it's your opinion, just state it (as you did in your comment above). Trying to conceal opinions in academic mealy-mouthing is surely a little dishonest.

  4. Ed (not Bystander) - I thought my original post was clear enough and there was no attempt to conceal anything. Some caution is always needed when we were not in court, did not hear the actual submissions and did not see things such as any pre-sentence report etc. On the basis of what I know, a shorter sentence would have sufficed.

  5. See The Guardian article 21st July - "Is the law being misused to undermine peaceful protest."

    Another case arising from the protest at Fortnum and Mason is that of Francis Fernie. He was sentenced to 12 months detention in a Young offenders Institution - The Guardian. Note that Fernie pleaded guilty to violent disorder at an early stage having gone to the Police voluntarily. He was of previous good character.

  6. He pleaded guilty in the Crown Court. Starting at the maximum (5years for going to trial), he did not go to trial, his contribution to harm, and his degree of culpability must have brought it down to two years, He pleaded guilty, therefore 16 months. Now offence mitigation or aggravation seem to have been balanced out, that leaves personal mitigation. Apparently he showed little actual remorse - giggling in court), he was a first time offender, but had a privileged background so should have known better. What else was said on his behalf? Who knows? - but 16 months does not seem widely wrong.

  7. An appeal is a possibility - we shall see.

  8. Just because he was badly brought up no reason to excuse his behaviour he is at one of the best regarded unis in the country and knew full well what he was doing.

    And from his mothers comments about wearing a balaclava you maybe have to wonder if the apple does not fall far from the tree.

    He needs to man up - not giggle.

  9. OCTOBER 2011 - the Court of Appeal considered Gilmour's application for an appeal and turned it down - see here.

    The Court of Appeal did not consider that a sentence of 16 months was "manifestly excessive." The Court of Appeal's analysis of the events of that night is interesting. There certainly appears to be, in their decision, greater emphasis on the events involving the royal cars than was reported previously.