Public Order Offences
If you have been charged with an offence such as violent disorder, affray, disorderly behaviour or drunk and disorderly, contact us now to speak to one of our experienced solicitors. We have a team of solicitors who specialise in dealing with this type of offence, as well as all other offences defined under the Public Order Act and the Protection from Harassment Act.6.
Affray (section 3, Public Order Act 1986)
This offence is concerned with the effect that this behaviour would have on other people in the vicinity. There must be behaviour that would cause a person present to be put in fear. This offence can be committed in a public or a private place, including your own home. There must however be more than mere words such as throwing items or punches. This behaviour must be directed against an individual not against property. The person put in fear can be hypothetical; there is no need for the prosecution to produce a witness to confirm that they were put in fear. An example of this is where two people who know each other fight in a bar. Neither will give a statement of complaint against the other. In addition no one in the bar will give a statement but there is CCTV evidence. This may allow the police to prosecute for affray even though there is no one to say they were put in fear.
Under section 3 of the Act, it must be proved that a person has used or threatened:
- 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
This is an either way offence triable in either the Magistrates or Crown court. The maximum penalty in the Magistrates court is 6 months imprisonment + a fine of level 5. In the crown court the maximum is 3 years imprisonment + an unlimited fine.
Sections 4 & 5 of the Public Order Act 1986
There is more than a little overlap within these sections. In reality the difference in charge comes from the seriousness of the incident. The penalties for section 4 offences are more severe than for a section 5. However, the charge should reflect the seriousness of the incident complained of. All these sections simply seek to prevent disorderly behaviour.
Fear or Provocation of Violence (section 4, Public Order Act 1986)
A section 4 offence is made out if the prosecution can show that the defendant used threatening, abusive or insulting words or behaviour, or distributed or displayed any writing or sign which is threatening abusive or insulting, with intention to cause that person to believe immediate unlawful violence would be used against him or another or, to provoke the use of immediate violence by another.
This is a common charge arising from group disturbances outside clubs and bars, also sports events.
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 4 offences involve conduct which will be more serious than that under section 5. The major difference is that for the section 4 offence the defendant must be shown to have intended the result. An offence under section 4 could be committed, for example; where threats are made to innocent bystanders or to public servants. Another example would be where there is a brawl but no complaint of assault (this is not an exhaustive list.)
A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 (Currently £5,000) on the standard scale or both.
Disorderly Behaviour (section 5, Public Order Act 1986)
This is defined as: Using threatening abusive or insulting words or behaviour, or disorderly behaviour, or displays any writing or signs or any 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.
Disorderly behaviour does not require any element of violence, actual or threatened; and it includes conduct that is not necessarily threatening, abusive or insulting. Whether behaviour can be properly categorised as disorderly is a question of fact. It is not necessary to prove any feeling of insecurity, in an apprehensive sense, on the part of a member of the public.
The following types of conduct are examples, which may at least be capable of amounting to disorderly behaviour:
- causing a disturbance in a residential area or common part of a block of flats
- persistently shouting abuse or obscenities at passers-by
pestering people waiting to catch public transport or otherwise waiting in a queue
- rowdy behaviour in a street late at night which might alarm residents or passers-by, especially those who may be vulnerable, such as the elderly or members of an ethnic minority group
- causing a disturbance in a shopping precinct or other area to which the public have access or might otherwise gather
It is very easy to fall foul of a section 5 charge. It is for the court to decide if the words or behaviour fall within the harassment, alarm, etc category. The court also has to decide if the person was likely to suffer harassment, alarm, etc.
It is a defence to show that the behaviour complained of was in a dwelling. It is also a defence to show that for some reason the behaviour was reasonable. This may be to defend yourself or another, or to protect property. It may also be the case that the person accused didn't believe that there was anyone who could hear or see him who would be affected by his behaviour. A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 (Currently £5,000) on the standard scale or both.
Drunk and Disorderly
There are two simple elements to this offence; one, you must be drunk and two, there must be evidence of disorderly behaviour. In effect it's what it says on the box.
In most cases but by no means all, the evidence of both elements will come from a police officer. To challenge the charge in court will in most cases require witnesses for the defence as to the true condition of the defendant.
Legal aid will only be granted for this offence in unusual cases which are to be contested. However on occasions an ASBO (Anti Social Behaviour Order) may be in place which seeks to prevent this type of behaviour. In those cases there is a risk of custody and legal aid may well be granted.
This offence can only be dealt with in the magistrates" court and the penalty is a fine or a discharge.
Protection from Harassment Act 1997
The PHA makes it a criminal offence to pursue a course of conduct which amounts to harassment of a person. A court may issue a restraining order against someone found guilty of such an offence.
The Protection from Harassment Act 1997 introduced four new criminal offences:
- Harassment (section 2): a summary only offence, six months' imprisonment and/or a level 5 fine
- Fear of violence (section 4): an either way offence, 5 years imprisonment and fine in the Crown court; 6 months imprisonment and fine in Magistrates court
- Breach of civil injunction (section 3(6)): an either way offence with the same penalty as section 4 above
- Breach of restraining order (section 5(5)): an either way offence with the same penalty as section 4 above
All of the offences are arrestable.
Under section 5, the Crown Court and the Magistrates Court can make a restraining order on conviction, prohibiting the defendant from doing anything described in the order, for the purpose of protecting the victim from further harassment or fear of violence. There is now a provision which allows a Court to make a restraining order even when the offence has been found not proved.
The elements of the section 2 offence are:
- a course of conduct
- which amounts to harassment of another
- which the defendant knows, or ought to know, amounts to harassment of another
A course of conduct has been defined by case law as two or more instances or events. These do not have to be actions which are illegal under any other act and often will amount to, what many would describe as ordinary behaviour under trying circumstances. So, if a couple fall out and one party wants to get back together and sends numerous text messages, that person could be held to be guilty of an offence. When the act was going through parliament the government said they anticipated its use would be negligible, that the act was directed at stalkers. In fact it is heavily used and is a common charge in the courts.
The elements of the section 4 offence are:
- a course of conduct
- which causes another to fear that violence will be used against him
- which the defendant knows, or ought to know, will cause another to fear that violence will be used against him
The defendant ought to know that his course of conduct will cause another to fear that violence will be used against them if a reasonable person in possession of the same information would think that the course of conduct would cause the other so to fear on that occasion.
It is clear from the above that the difference between the section 2 offence and the section 4 is the additional element of violence, or the fear that violence would be used against them. There is also the facility to have an aggravated form of the offence where there is an additional element where the offence is based on the victim's race or religion.
Section 32 (1)(a) Crime and Disorder Act 1998 creates a racially or religiously aggravated form of section 2, Protection from Harassment Act 1997 (offence of harassment).
Section 32 (1)(b) Crime and Disorder Act 1998 creates a racially or religiously aggravated form of section 4, Protection from Harassment Act 1997 (putting people in fear of violence).
The actions that can be complained of in these offences are not always what they appear and quite often the police and or prosecution will have put the worst possible interpretation on what has been said or done. You are advised to take independent advice on whether or not this does in fact amount to an offence or if it amounts to the offence charged. It is often the case that harassment and public order offences are overcharged.