This chapter will explore public order offences. These crimes, including riot and violent disorder, often occur during public protests or street brawls. They are a danger to the public and these recently reformed of-fences are designed to maintain public order.

• The law in this area was reformed by the Public Order Act 1986.• Public order offences used to be based mainly in common law.

Public orderoffences

Riot: s.1 PublicOrder Act 1984

Violent disorder:s.2 Public Order

Act 1984Affray: s.3 PublicOrder Act 1984

Fear orprovocation of

violence: s.4 PublicOrder Act 1984

Intentionalharassment, alarm or

distress: s.4A PublicOrder Act 1984

Harassment, alarm or distress:

s.5 Public OrderAct 1984

• Other relevant offences include wearing a uniform for a political purpose under the Public Order Act 1936, and aggravated trespass under s.68 of the Criminal Justice and Public Order Act 1994.

• The three main offences examined below can be distinguished as follows:

Section 1: Riot Section 2: Violent disorder Section 3: Affray

12+ people 3+ people 1+ people

• The courts have stated that the criminal law should only be invoked when the conduct amounts to such a threat to public order that a civil action is not enough – Dehal v DPP (2005).

16.1 Riot

Riot: uprising, disturbance, unrest, demonstration, rebellion, group, gathering.

Defi nition

Public order offences

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• Riot is an offence under s.1(1) of the Public Order Act 1986.

Workpoint

The offence of riot is provided below. Highlight the actus reus and mens rea elements of this offence and make lists of the actus reus of riot and mens rea of riot.

Section 1(1): Where twelve 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 fi rmness 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.

16.1.1 Actus reus of riot• There must be at least 12 people present for this offence to apply.• The members do not have to agree to assemble in advance.• They also do not have to agree on the common purpose in

advance – s.1(3).• It can be committed in private too – s.1(5).

Workpoint

Below is an example of a riot. Provide your own example of a riot.

Actus reus of riot:

There is a human rights protest going on in Birmingham. Three pubs call last orders and many drinkers spill out into the street and join the demonstration, which becomes rowdy and violence is threatened.

• A person of ‘reasonable fi rmness’ must fear for his personal safety.• The violence is only ever ‘lawful’ if it is used in self-defence.• Violent conduct can be aimed towards property as well as people – s.8.

Workpoint

Twenty high school students are unhappy with the teaching at their school. In a chemistry lesson, their teacher does not turn up yet again, and the class spill out into the yard and spray graffi ti stating ‘no teach-ers’ onto the wall of the school. Has there been a riot? Give reasons for your answer.

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3 16.1.2 Mens rea of riot• The defendant must intend to use violence or is aware that his con-

duct may be violent – s.6(1).• ‘Awareness’ is similar to Cunningham recklessness (a subjective test)

in that the defendant must be aware of his own behaviour.• The consumption of alcohol does not provide a defence to riot –

s.6(5).• Intoxication includes alcohol or drugs or other means – s.6(6).

‘Section 6(5): A person whose awareness is impaired by intoxication shall be taken to be aware of that which he would be aware if not intoxicated, unless his intoxication was not self-induced or caused solely by medical treatment.’

• Riot is therefore a basic intent offence even though it does not ex-pressly mention ‘recklessness’.

Defendantcharged with riot

Indictment to CrownCourt only

Maximum penalty is10 years imprisonment

Checkpoint - riot

Item on checklist: Done!

I can list four offences from the Public Order Act 1986

I can defi ne the offence of riot under s.1(1) of the 1986 Act

I can list the actus reus elements of riot

I can defi ne the mens rea of riot and explain the term ‘awareness’

I can explain the implications of s.6(5) on a defendant charged with riot

16.2 Violent Disorder

Violent disorder: three or more persons, present together, using or threatening violence.

Defi nition

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• Violent disorder is not considered as serious as riot.• It is an offence under s.2(1) of the 1986 Act.

Workpoint

The offence of violent disorder is provided below. Make a list of the actus reus and a list of the mens rea elements of this offence:

Section 2(1): Where three 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 fi rmness present at the scene to fear for his personal safety, each of the persons using or threatening unlawful violence is guilty of violent disorder.

(2) It is immaterial whether or not the three or more use or threaten unlawful violence simultaneously.

(3) No person of reasonable fi rmness need actually be, or likely to be, present at the scene.

(4) Violent disorder may be committed in private as well as public places.

• Only three people need to be present for this offence to apply.• The person of reasonable fi rmness does not have to be present at the

time (he is simply hypothetical).• There is no need for a common purpose under s.2(1).• Violent disorder may be committed in private.• The violence can be directed towards a person or property.

Workpoint

Below is an example of violent disorder. Provide your own example of a violent disorder.

Actus reus of violent disorder:

Five youths begin beating on the window of an old people’s home. The glass begins to wobble and cracks begin to appear. The youths are shouting aggressively at the residents.

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that his conduct may be violent or threaten violence – s.6(2).

Workpoint

Copy and complete the diagram and distinguish the mens rea of riot to that of violent disorder. What are the main differences?

Mens rea

Mens rea of violent disorder:Mens rea of riot:

Distinguish them here:

• As seen with riot, intoxication is no defence, making violent disorder a basic intent crime – s.6(5).

Workpoint

Abdul was deeply offended by religious comments made on the regional news. The television building was next to his university, so the next day he stood outside the television building and shouted to the executives to ‘come down and get sorted out’. Abdul texted his two friends – Alia and Mohammed – and all three of them shouted up at the television building for over an hour. Do all three individuals have both the actus reus and mens rea for violent disorder? Apply the ele-ments to each person individually and give reasons for your answer.

Defendant charged withviolent disorder

Triable eitherway

Maximum penalty is 5years imprisonment

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Item on checklist: Done!

I can defi ne the offence of riot under s.2(1) of the 1986 Act

I can list the actus reus elements of violent disorder

I can defi ne the mens rea of violent disorder and distinguish it from the mens rea of riot

I can explain why violent disorder is deemed to be the less serious offence

16.3 Affray

Affray: scuffl e, fi ght, brawl, disturbance, commotion, threats.

Defi nition

• Affray is considered less serious than violent disorder.• It is an offence under s.3(1) of the 1986 Act.

Workpoint

The offence of affray is provided below. Make a list of the actus reus and mens rea elements of this offence.

Section 3(1): A person is guilty of affray if he uses or threatens unlaw-ful violence towards another and his conduct is such as would cause a person of reasonable fi rmness present at the scene to fear for his personal safety.

(2) If two or more persons use or threaten unlawful violence, it is the conduct of them taken together that must be considered.

(3) A threat cannot be made by the use of words alone.

(4) No person of reasonable fi rmness need actually be, or likely to be, present at the scene.

(5) Affray may be committed in private as well as public places.

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7 • There must be some conduct under s.3(1) – aggressive words are not

enough.• Encouraging a dog to attack police is aggressive conduct – Dixon (1993).• The hypothetical person of reasonable fi rmness does not have to be

present at the scene – Davison (1992).• However, in contrast to riot and violent disorder, because the conduct

must be aimed at a person under s.3(1), someone must be present – I, M and H v DPP (2001).

Case:

Davison (1992)

Facts: the defendant waved an eight-inch knife at a police offi cer saying ‘I’ll have you’. His conviction for affray was upheld.

Held: it was not a question of whether the police offi cer feared for his personal safety, it was whether a person of reasonable fi rmness present at the scene would have feared for his safety (had he been there).

Case:

I, M and H v DPP (2001)

Facts: all three defendants were members of a gang. They had petrol bombs to use against another gang. The police arrived and they fl ed, throwing away their bombs. Only the police were present.

Held: the conviction for affray was quashed. It can only be committed where the threat was directed towards another person present at the scene.

• As for violent disorder, the defendant must intend to use or threaten violence or is aware that his conduct may be violent or threaten vio-lence – s.6(2).

• As seen with riot and violent disorder, intoxication is no defence, making affray a basic intent crime – s.6(5).

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DisorderAffray

Public Order Act 1986 Section 1(1) Section 2(1) Section 3(1)

Number of defendants 12+ 3+ 1+

Common purpose? Yes No No

Public and private? Yes – s.1(5) Yes – s.2(4) Yes – s.3(5)

Conduct towards property

Yes – s.8(a) Yes – s.8(a) No

Mens rea s.6(1) s.6(2) s.6(2)

Maximum penalty 10 years 5 years 3 years

Defendant charged withaffray

Triable eitherway

Maximum penalty is 3years imprisonment

Workpoint

Michael and James were drug dealers. A deal had gone badly wrong and an innocent civilian was shot. The police were on their way and a crowd had gathered. Michael and James had an argument in the street. Twenty minutes later, Michael was arrested for affray.

Explain in detail what Michael must do in terms of physical actions, and must in terms of his mental element, in order to be charged with affray.

Checkpoint - affray

Item on checklist: Done!

I can defi ne the offence of affray under s.3(1) of the 1986 Act

I can list the actus reus elements of affray and distinguish it from the actus reus of violent disorder

I can defi ne the mens rea of affray

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9 16.4 Fear or provocation of violence• Offensive behaviour is also governed by a new offence under s.4(1)

of the 1986 Act.

Public orderoffences

Fear orprovocation of

violence: s.4 PublicOrder Act 1984

Intentionalharassment, alarm or

distress: s.4A PublicOrder Act 1984

Harassment,alarm or distress:

s.5 Public OrderAct 1984

Workpoint

The offence of fear or provocation of violence is provided below. Make a list of what you think are the key words or phrases of this offence.

Section 4(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 unlaw-ful 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 vio-lence 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 pri-vate place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible repre-sentation is distributed or displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.

• The actus reus of s.4(1) covers a wide range of anti-social behaviour.• Section 4(2) specifi cally excludes events that occur inside a dwelling

because this is a public order offence.• Using threatening words in your own home is not an offence under

this section – Atkin v DPP (1989).

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s.4(1)

Using threatening, abusive orinsulting words or behaviour

towards another person

Distributing or displaying to another person any writing, sign or other visible representation which is threatening, abusive or insulting

Workpoint

Now write your own example of Actus reus of s.4(1).

• The common phrase used throughout s.4 is ‘threatening, abusive or insulting’.

• These words are not defi ned by the 1986 Act and should be given their ordinary meaning – Brutus v Cozens (1972).

Case:

Brutus v Cozens (1972)

Facts: the defendant made a protest about apartheid in South Africa by blowing a whistle and distributing leafl ets.

Held: he was acquitted because the question of whether something is insulting is a question of fact (i.e. ‘an ordinary, sensible man knows an insult when he sees it or hears it’). What the defendant did was not insulting to the ordinary, sensible man.

• This simple test has led to strange convictions.• In Masterson v Holden (1986) intimate cuddling between two homo-

sexual men in a public street early in the morning was deemed to be insulting.

• The threatening, abusive or insulting words must be directed towards another person – Atkin v DPP (1989).

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11 Case:

Atkin (1989)

Facts: the defendant knew that a bailiff was parked outside his house. He told offi cers that if the bailiff came into his house he was a ‘dead ‘un’. The bailiff was informed of this and felt threatened.

Held: the defendant was not guilty because the bailiff was not present and the words were not used at him directly. Words must be ‘in the presence of and in the direction of another person directly’.

Workpoint

Has the actus reus of fear or provocation of violence under s.4(1) of the 1986 Act been met in the scenario below? Give reasons for your answer, for both Ben and Kelly.

Kelly and Ben had broken up. It was a very hostile situation and both of them were calling each other names and spreading local rumours about each other. Kelly was dating another man within a week. Ben went onto a social networking site and posted a message on Kelly’s wall saying: ‘I will get him and teach him a lesson’. Kelly then sent Ben a text message saying: “’I’ve still got your fl ick knife and I’ll use it if you don’t leave me alone’.

• The mens rea of fear or provocation of violence under s.4(1) is as fol-lows:

‘Section 6(3): A person is guilty of an offence under section 4 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting.’

Workpoint

Return to the Kelly and Ben scenario above. Do they both have the mens rea for a charge under s.4(1)?

Defendant charged withfear or provocation of violence

Triable only inMagistrate’s Court

Maximum penalty is 6months imprisonment

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violence

Item on checklist: Done!

I can defi ne the offence of fear or provocation of violence under s.4(1) of the 1986 Act

I can list the two main actus reus elements of fear or provocation of violence

I can defi ne the mens rea of fear or provocation of violence

16.5 Harassment, alarm or distress• It is an offence under s.5 of the 1986 Act to cause someone harass-

ment, alarm or distress.

‘Section 5(1) A person is guilty of an offence if he -

(a) uses threatening, abusive or insulting words or be-haviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible repre-sentation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.’

Workpoint

Now give your own examples of Section 5.

• A police offi cer can be harassed, alarmed or distressed under s.5(1) – DPP v Orum (1988).

• There is no need to prove that a person heard the words, it is suf-fi cient that there is a person close enough to hear – Taylor v DPP (2006).

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DPP v Orum (1988)

Facts: the defendant had an offensive and public argument with his girlfriend. The police intervened and he was abusive to them. They arrested him for breach of the peace and he assaulted a police officer.

Held: a police officer can be harassed, alarmed or distressed under s.5(1).

Case:

Taylor v DPP (2006)

Facts: the defendant had shouted, screamed and sworn using racist language. There were a number of people on the scene near enough to hear the abusive language.

Held: it is sufficient that there is someone close enough to hear the threatening or abusive words.

• The meaning of ‘harassment’ was explored in Southard v DPP (2006).

Case:

Southard v DPP (2006)

Facts: the defendant and his brother were stopped at night and searched. The defendant interfered with the search process and said ‘don’t touch me, you can’t touch him’. He was convicted and appealed under s.5 and ‘harassment’ was the main issue.

Issue: a police officer was not ‘likely’ to be caused harassment by the defendant’s words because he is used to such ‘annoying’ behaviour.

Held: the conviction was upheld.

Fulford J: ‘Distress by its very nature involves an element of real emotional disturbance or upset but the same is not necessarily true of harassment. You can be harassed, indeed seriously harassed, without experiencing emotional disturbance or upset at all. That said, although the harassment does not have to be grave, it should also not be trivial.’

• ‘Harassment’ is clearly not deemed to be as serious as ‘distress’.• The phrase harassment, alarm or distress can therefore be split up into

their separate elements.

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Mary, an elderly lady, is walking to the bank. She passes a student protest about course fees. The students are stomping their feet and us-ing abusive language on a megaphone. The leader of the group, Jack, shouts ‘students won’t pay! The universities will pay! You will all pay today!’. Mary is directly in the path of the protest and is scared.

Has Jack met the actus reus elements of harassment, alarm or distress under s.5(1) of the 1986 Act? Give reasons for your answer.

• The mens rea of harassment, alarm or distress under s.5(1) is split into two and either one will suffi ce.

Mens rea under s.5(1)

...or is aware that it may be threatening, abusive or insulting or he intends his behaviour to be, or is aware that it may be disorderly

D intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting...

Workpoint

Revisit the Jack and Mary scenario above. Does Jack have the mens rea of s.5(1)? Give reasons for your answer.

16.5.1 Special defences• There are special defences available to a charge under s.5(1).

Defences tos.5(1):

3: D’s conduct was reasonable.

2: D 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...

1: D had no reason to believe that there was any person within sight who was likely to be caused harassment, alarm or distress; or...

• The burden is on the defendant to prove that one of these defences is made out.

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15 Checkpoint - harassment, alarm or distress

Item on checklist: Done!

I can defi ne the offence of harassment, alarm or distress under s.5(1) of the 1986 Act

I can list the actus reus elements of harassment, alarm or distress

I can explain what Taylor v DPP (2006) added to the actus reus of s.5(1)

I can distinguish ‘harassment’ from ‘distress’ using a case authority

I can defi ne the two-part mens rea of harassment, alarm or distress

I can describe the three special defences available under s.5(1)

16.6 Intentionally causing harassment, alarm or distress• This new offence under s.4A was added to the Public Order Act 1986

by the Criminal Justice and Public Order Act 1994.• It is a more serious version of harassment, alarm or distress under

s.5(1) of the 1986 Act (above).• The defendant must specifi cally intend to cause harassment, alarm or

distress under s.4A.

‘Section 4A(1): 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 be-haviour, or disorderly behaviour, or;

(b) displays any writing, sign or other visible repre-sentation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.’

• The new offence under s.4A(1) can be committed in a public or pri-vate place (e.g. work place), but not in a dwelling (e.g. house).

• The term ‘distress’ was explored in R v DPP (2006).

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R v DPP (2006)

Facts: the defendant, aged 12, was arrested for criminal damage. He made sexual gestures towards the police. A police officer arrested him under s.4A too, and complained that he was distressed that such a young boy could make such gestures.

Held: the conviction under s.4A was quashed because there was no evidence that the defendant intended to cause real emotional disturbance to the officer. In addition, there was no evidence that the officer was truly distressed by the defendant’s behaviour.

Toulson J: ‘I would hold that the word “distress” requires emotional disturbance or upset. It does not have to be grave but nor should the requirement be trivialised. There has to be something which amounts to real emotional disturbance or upset.’

• The judgment in R v DPP (2006) tells us three important things about s.4A(1):

R v DPP (2006)

“Distress” is a “realemotional disturbance

or upset”.

D must intend to causeharassment, alarm or

distress...

D’s behaviour mustactually cause harassment,

alarm or distress...

• The mens rea of s.4A(1) is quite simplistic compared to other public order offences: the defendant must intend to cause harassment, alarm or distress.

Workpoint

Two neighbours, Shaun and Demitri, have been at odds for some time about a boundary fence. Shaun calls his solicitor and it is established that Demitri’s fence is half an inch onto Shaun’s back garden. Demitri slams the door in Shaun’s face when he is confronted with this fact. Shaun is very angry and retaliates. An hour later, the police are called and Shaun is arrested under s.4A of the 1986 Act for using threaten-ing, abusive or insulting words or behaviour with intent. What physical act(s) could Shaun have completed in order to be charged? Write your suggestion.

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17 16.6.1 Special defences• There are special defences available to a charge under s.4A(1).

Defences tos.5(1):

3: D’s conduct was reasonable.

1: D was inside a dwelling, and...

2: D 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...

• As with the offence under s.5(1) of harassment, alarm or distress (above), the burden is on the defendant to prove that one of these defences is made out.

• A ‘dwelling’ is ‘any structure or part of a structure occupied as a per-son’s home or as other living accommodation’ – s.8.

• A police cell is not a ‘dwelling’ – R v Francis (2007).• The defendant is required under one of the defences to prove that his

behaviour was reasonable.• However it is unlikely that any intended harassment, alarm or distress

is reasonable.

Workpoint

Look back at your answer to the Shaun and Demitri scenario. Could Shaun, through his actions that you suggested, also be charged under s.4A(1) of the 1986 Act? Give reasons for your answer.

Checkpoint - intentionally causing harassment, alarm or distress

Item on checklist: Done!

I can defi ne the offence of intentionally causing harassment, alarm or distress under s.4A(1) of the 1986 Act

I can list the actus reus elements of the new s.4A(1) offence

I can explain what R v DPP (2006) added to the actus reus of s.4A(1)

I can defi ne ‘distress’ using a case authority

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I can defi ne the two-part mens rea of harassment, alarm or distress

I can defi ne the mens rea of the new offence under s.4A(1)

I can describe the three special defences available under s.4A(1)

16.7 Racially aggravated public order offences• There are racially aggravated versions of the offences under s.4, 4A

and 5 of the Public Order Act 1986.• These were created by s.31 of the Crime and Disorder Act 1998.• Special circumstances are listed under s.28 of the Crime and Disorder

Act 1998.

Section 28(1) of 1998 Act:special circumstances

Circumstance 2: the offence is motivated (wholly or partly) by hostilitytowards members of a racial group based on their membership of that group

Circumstance 1: at the time, immediately before or after the offence, thedefendant demonstrates towards the victim hostility based on the victim’s

membership of a racial group; or

• If one of the above circumstances are present, then the offences under s.4, 4A and 5 are racially aggravated.

• General words such as ‘foreigners’ or ‘immigrants’ are included under the s.28 exceptions – DPP v M (Minor) (2004).

Case:

Rogers (Phillip) (2007)

Facts: the defendant encountered three Spanish women. He called them ‘bloody foreigners’ and told them to go back to their home country. He then pursued them in an aggressive manner. He was charged under s.31(1)(a) of the Crime and Disorder Act 1998 of using racially aggravated abusive or insulting words.

Held: a racial group does not have to be distinguished by particular characteristics. The defi nition is wide enough to embrace ‘foreign’ individuals.

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19 • The phrase ‘an immigrant doctor’ shows hostility towards a racial

group – Attorney-General’s Reference (No 4 of 2004) (2005).• The hostility may be motivated wholly or in part by race or

religion – DPP v Johnson (2008).

Look up the case of DPP v Johnson [2008] All ER 371. What did the defendant do or say? What was he motivated by? What was the outcome?

Research Point

Checkpoint - racially aggravated pub-lic order offences

Item on checklist: Done!

I can explain the role of the Crime and Disorder Act 1998 in creating new racially aggravated public order offences

I can list the two circumstances under s.28 of the 1998 Act that turn particular public order offences into racially aggravated offences

I can make a list of potential racially aggravated words that may constitute harassment, alarm or distress, citing at least cases as support

Potential exam questions:

John and Dave read a message on a social networking site to join a group of friends in the city centre. There were student fee pro-tests going on in the High Street. John and Dave joined a group of friends and they all tagged along with the protesting crowd of thousands. The protest reached the market place and the group of friends, including John and Dave, split off down a side street and began to cause trouble. Sixteen of them began running down the street, screaming loudly, kicking windows and trying to smash down doors. Parents, children and families fl ed out of the way. John and Dave began fi ghting with each other. John yelled at Dave that he was going to kill him, so Dave punched John and the pair of them began brawling in the street. Shop owners closed their doors and made themselves scarce.

Have any public order offences been committed?