Public Order Act Part2
..continued from http://www.goshinjutsu.co.uk/public-order-act-part1
Public Order Act
Sections 4, 4A and 5
These offences are much less serious than Sections 1-3. Sections 4 and 4A carry a maximum sentence of 6 months imprisonment, whilst Section 5 carries a maximum of a fine.
Section 4 – Fear or Provocation of Violence
In English Law Fear or Provocation of Violence forms part of the Public Order Act 1986 under section 4.
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 dwelling.
This offence can be Racially or Religiously aggravated (Crime and Disorder Act 1998, s31(1)(a)
Notes on Threatening Behaviour
There is no legal definition as to what is meant by “threatening, abusive or insulting” and it will be up to the magistrates to decide in each particular case. However, words or behaviour have to be directed towards an actual human target who is affected by them. And they cannot be held to be threatening etc. simply because someone finds them offensive or rude.
As with Sections 1-3, the offence can be committed in public and private places, except where both the accused and the victim are in a dwelling.
No-one need actually believe that immediate violence will be used against them or actually be provoked. It is enough that the accused intends to cause such a belief or to provoke violence, or that this is the likely outcome.
The violence must be immediate – i.e. likely to occur within a relatively short time span.
As intent is usually difficult to prove, the prosecution will be more likely to rely on the second limb namely that the provocation of violence or fear of violence is “likely” – that is, probable. This test is therefore objective and you can be convicted even if you did not intend to provoke or cause fear of violence, so long as the court decides that this was in fact the likely consequence of your behaviour.
The prosecution must prove that you intended the words etc. to be threatening, abusive or insulting or were aware that they might be.
Arrest and Punishment
* Statutory Power of Arrest
* Trial summarily (Can be brought before a Magistrates)
* Six months imprisonment and/or a fine
Racially or Religiously aggravated Fear or Provocation of Violence:
* Statutory Power of Arrest
* Trial either way (Can be brought before a Magistrates court or Crown court)
* Two years imprisonment and/or a fine on indictment; six months imprisonment and/or a fine summarily.
As with Sections 3, 4, 4A and 5 it is not an “arrestable offence”. A constable may only arrest someone whom he reasonably suspects to be committing the offence.
Section 4A – Intentionally causing harassment, alarm or distress
The Public Order Act 1986 s.4a states:
1) A person is guilty of an offence if, with intent to cause a person intentional 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.
This offence can be Racially or Religiously aggravated (Crime and Disorder Act 1998, s31(1)(b)
Notes on Intentional Harassment
Although Section 4A was originally introduced as an amendment to the act in order to address the problem of racial harassment, it is not limited to such conduct and is frequently used against protestors.
There are three basic ingredients to the offence. Firstly, your behaviour must be threatening, abusive, insulting or disorderly. Secondly you must intend to cause someone harassment alarm or distress by that behaviour. Thirdly, in contrast to Sections 4 and 5, someone must be actually caused harassment, alarm or distress by your behaviour.
There must be an actual “victim”, although it does not have to be the intended victim. And you must not only intend your behaviour or words to be insulting, but also intend that they cause harassment, alarm or distress.
Unlike Section 4, the words or behaviour need not actually be addressed to another directly.
Defences
Under this section and Section 5 there is a statutory defence that your conduct was reasonable. If you are charged with an offence under this section on a protest, then the court will usually have to rule on whether the charge was compatible with your European Convention right to freedom of expression under Article 10. It has been ruled in court that in this kind of case, there is a presumption in favour of your right to freedom of speech. The onus is on the prosecution to show that interference with this right by way of criminal proceedings is proportionate in all the circumstances.
Arrest and Punishment
* Statutory Power of Arrest
* Trial summarily (Can be brought before a Magistrates)
* Six months imprisonment and/or a fine
Racially or Religiously aggravated Fear or Provocation of Violence:
* Statutory Power of Arrest
* Trial either way (Can be brought before a Magistrates court or Crown court)
* Two years imprisonment and/or a fine on indictment; six months imprisonment and/or a fine summarily
It is not an “arrestable offence”. However, a constable may arrest anyone whom he reasonably suspects to be committing an offence.
There is no need for a warning prior to arrest unlike under Section 5. This is why the police will often arrest under Section 4A and then drop the charges to Section 5. It is often difficult to prove the necessary intent or to produce a witness who is prepared to say that they were caused distress. Section 5 is generally much easier to prove.
Section 5 – Conduct likely to cause harassment, alarm or distress
The Public Order Act 1986 s.5 states:
1) 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.
This offence can be Racially or Religiously aggravated (Crime and Disorder Act 1998, s31(1)(c)
Notes on Section 5
Unlike Section 4A there is no requirement that anyone actually be caused harassment, alarm or distress and therefore no need for a witness to that effect. The police need only say that your conduct took place within the sight or hearing of a potential victim, although it will obviously help to prove their case if they can produce a witness.
Section 5 differs from Section 4A in that there is no need to show that you intended to cause the harassment, only that it was likely to be caused. This means that to a certain extent your behaviour will be judged objectively on the effect it was likely to have, rather than on the effect it actually had on any victim.
Section 5 and the Police
It is often said that the police cannot be caused harassment, alarm distress under Section 5, but this is not strictly true. The current law is stated in the case of DPP v Orum, where the court was asked to decide on whether or not a constable can in law be caused harassment, alarm or distress. It was decided that although police officers can be caused harassment, they were far less likely than ordinary members of the public to be caused distress by insulting words and behaviour. Whether or not the police were actually caused harassment is a question of fact for the magistrates to decide having regard to all the circumstances: the time, the place, who the police officers were etc.
Arrest and Punishment
* Statutory Power of Arrest
* Triable summarily (Can be brought before a Magistrates)
* Fine
Racially or Religiously aggravated Fear or Provocation of Violence:
* Statutory Power of Arrest
* Triable summarily (Can be brought before a Magistrates)
* Fine
Section 5 is trial summarily only, the maximum penalty is a fine, and it is not an “arrestable offence”. A constable may only arrest if:
a) a person engages in offensive conduct which a constable warns him to stop, and
b) that person engages in further offensive conduct immediately or shortly after the warning.
The constable need not be in uniform, and the arresting constable need not be the same one who issued the warning. He must warn you regarding the offensive conduct while it is actually happening and not afterwards.
You can only be arrested if the further offensive conduct takes place within a short time span.
Malcolm Keith
Chief Instructor
Youshiki Goshinjutsu
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