Section 5 of the
Public Order Act 1986
The Public Order Act 1986 (c. 64) is an Act of the Parliament of the United Kingdom that creates a number of public order offences. They replace similar common law offences and parts of the Public Order Act 1936. It implements recommendations creates a
statutory
A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
offence in
England and Wales
England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. Th ...
, including the use of "threatening or abusive" words or behaviour likely to cause "harassment, alarm or distress". The word "insulting" was originally included in the first quoted phrase, but was removed when section 5 was amended in 2014.
An aggravated form of the offence, "
intentional harassment, alarm or distress", was added as section 4A of the same Act by the
Criminal Justice and Public Order Act 1994
The Criminal Justice and Public Order Act 1994 (c. 33) is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the law, most notably in the restriction and reduction of existing rights, clamping down on unlicensed ...
.
[Public Order Act 1986]
Section 4A
see footnote F1; Criminal Justice and Public Order Act 1994
Section 154
/ref>
The offence
The offence is created by section 5 of the Public Order Act 1986. Section 5(1) provides:
:"(1) A person is guilty of an offence if he/she:
::(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."
In February 2014 Parliament
In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
passed a redaction of the statute
A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
which removed the word "insulting" in subsections "a" and "b" following pressure from citizens.
This offence has the following statutory defences:
:(a) The defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one juris ...
had no reason to believe that there was any person within hearing or sight who was likely to be alarmed or distressed by his action.
:(b) The defendant was in a dwelling
In law, a dwelling (also known as a residence, abode or domicile) is a self-contained unit of accommodation – such as a house, apartment, mobile home, houseboat, recreational vehicle, or other "substantial" structure – used as a home by ...
and had no reason to believe that his behaviour would be seen or heard by any person outside any dwelling.
:(c) The conduct was reasonable.
Police officers
In ''DPP v Orum'' 989
Year 989 ( CMLXXXIX) was a common year starting on Tuesday of the Julian calendar.
Events
By place
Byzantine Empire
* Emperor Basil II uses his contingent of 6,000 Varangians to help him defeat Bardas Phokas (the Younger), who suffe ...
1 WLR 88, 988
Year 988 ( CMLXXXVIII) was a leap year starting on Sunday of the Julian calendar.
Events
By place
Byzantine Empire
* Fall – Emperor Basil II, supported by a contingent of 6,000 Varangians (the future Varangian Guard), organiz ...
3 All ER 449, 989
Year 989 ( CMLXXXIX) was a common year starting on Tuesday of the Julian calendar.
Events
By place
Byzantine Empire
* Emperor Basil II uses his contingent of 6,000 Varangians to help him defeat Bardas Phokas (the Younger), who suffe ...
88 Cr App R 261 the Divisional Court confirmed that police officers are not unable to be victims of section 5 of the Public Order Act 1986 caused by swearing and other abusive/threatening behaviour, but this behaviour must be in excess of what the officer is or should be used to.
Glidewell LJ said:
I
''Southard v DPP''
006
Alec Trevelyan is a fictional character who is the main antagonist in the 1995 James Bond film ''GoldenEye,'' portrayed by actor Sean Bean. Bean's likeness was also used as the model for Alec Trevelyan in the 1997 video game '' GoldenEye 007' ...
EWHC 3449 (Admin), 006
Alec Trevelyan is a fictional character who is the main antagonist in the 1995 James Bond film ''GoldenEye,'' portrayed by actor Sean Bean. Bean's likeness was also used as the model for Alec Trevelyan in the 1997 video game '' GoldenEye 007' ...
All ER (D) 101, Fulford J. said "I see no basis for the original written argument that this criminal provision is not available when police officers alone are the likely audience or target.", although the court acknowledged the tide is slowly turning on such incidents:
''"Finally, although the court considered that the facts of this case came near to the borderline as to whether the ingredients of the offence were made out, it is clear that they concluded"''
Holloway v DPP (Admn 21 Oct 2004) Ref: 004EWHC 2621 (Admin)) also states that a charge relying on the fact that someone "might have, or could have seen" the conduct is insufficient, compared to whether or not anyone actually did.
DPP v Harvey (17 Nov 2011) 011EWHC 3992 (Admin), 011EWHC B1 (Admin) upheld an appeal quashing a conviction for a section 5 offence. The appellant had been searched by two Police Officers and swore at them. Neither officer said they were harassed, alarmed or distressed by the words and could not show how any member of the public was affected. Appeal held.
Limits: Freedom of speech
Clause (c) allows for a defence on the grounds of reasonable behaviour. This interpretation will depend upon case law.
In ''Dehal v Crown Prosecution Service,'' Mr Justice Moses ruled that in cases involving freedom of expression, prosecution is unlawful unless it is necessary to prevent public disorder: "a criminal prosecution was unlawful as a result of section 3 of the Human Rights Act and Article 10 unless and until it could be established that such a prosecution was necessary in order to prevent public disorder". This case involved an individual placing a sign critical of religious leaders.
Case law may go further and revolve around the prevention of violence. In considering another section 5 case, Lord Justice Auld quoted ''Redmond-Bate v DPP'' (a case involving breach of the peace), "Free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence".
However, in ''Abdul v DPP'', Lord Justice Gross ruled that to some degree such rules were a matter of fact to be handled by lower courts and not a matter for appeal, stating "If the lower courts themselves approached the matter having duly considered all the relevant principles, the appellate courts will – also on established principles, applicable to appellate courts – be disinclined to interfere." noting that in ''Dehal v CPS'' the lower court had not considered Article 10 in any way.
In a similar case, a defendant who displayed a poster saying "Islam out of Britain" was found guilty and denied appeal.
Mode of trial and sentence
The offence created by section 5 is a summary offence
A summary offence or petty offence is a violation in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment (required for an indictable offence).
Canada
In Canada, summary offe ...
. It is punishable with a fine
Fine may refer to:
Characters
* Fran Fine, the title character of ''The Nanny''
* Sylvia Fine (''The Nanny''), Fran's mother on ''The Nanny''
* Officer Fine, a character in ''Tales from the Crypt'', played by Vincent Spano
Legal terms
* Fine (p ...
not exceeding level 3 on the standard scale The standard scale is a system in Commonwealth of Nations, Commonwealth law whereby financial Criminal law, criminal penalties (Fine (penalty), fines) in legislation have maximum levels set against a standard scale. Then, when inflation makes it nec ...
[The ]Public Order Act 1986
The Public Order Act 1986 (c. 64) is an Act of the Parliament of the United Kingdom that creates a number of public order offences. They replace similar common law offences and parts of the Public Order Act 1936. It implements recommendations , section 5(6) (£1,000 as of 2015).
Arrest
Sections 5(4) and (5) of the 1986 Act formerly provided a statutory power of arrest
An arrest is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be question ...
(which required a warning to be given beforehand). They were repealed by section 174 of, and Part 2 of Schedule 17 to, the Serious Organised Crime and Police Act 2005
The Serious Organised Crime and Police Act 2005 (c. 15) (often abbreviated to SOCPA or SOCAP) is an Act of Parliament, Act of the Parliament of the United Kingdom aimed primarily at creating the Serious Organised Crime Agency. It also significan ...
. Arrest for this offence is now governed by section 24 of the Police and Criminal Evidence Act 1984
The Police and Criminal Evidence Act 1984 (c. 60) (PACE) is an act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, and provided codes of practice for the exercise of t ...
(as substituted by the 2005 Act).
Statistics
There were four to five thousand prosecutions for harassment, alarm or distress brought each year in England and Wales
England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. Th ...
during the 2001–2003 period, with approximately three thousand cases resulting in conviction.
Intentional harassment, alarm or distress
Section 4A of the Public Order Act 1986
The Public Order Act 1986 (c. 64) is an Act of the Parliament of the United Kingdom that creates a number of public order offences. They replace similar common law offences and parts of the Public Order Act 1936. It implements recommendations , which was added to the Act by the Criminal Justice and Public Order Act 1994
The Criminal Justice and Public Order Act 1994 (c. 33) is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the law, most notably in the restriction and reduction of existing rights, clamping down on unlicensed ...
, created the distinct aggravated offence of intentional harassment, alarm or distress.
Racially or religiously aggravated offence
Section 31(1)(c) of the Crime and Disorder Act 1998
The Crime and Disorder Act 1998 (c. 37) is an Act of the Parliament of the United Kingdom. The Act was published on 2 December 1997 and received royal assent in July 1998. Its key areas were the introduction of Anti-Social Behaviour Orders, Se ...
(c.37) creates the distinct offence of racially or religiously aggravated harassment, alarm or distress.
References
* ''Blackstones Police Manual: Volume 4: General police duties'', Fraser Simpson (2006). pp. 253. Oxford University Press.
{{Reflist
External links
Statistics on criminal proceedings for harassment, alarm or distress, 2001-2003
English criminal law
Harassment law