Public Order Offences

Riot 

This is hardly ever prosecuted. Under section 1 of the Act, it must be proved that: 

  • twelve or more persons;
  • present together;
  • used or threatened unlawful violence (all charged must use);
  • for a common purpose; and that 
  • the conduct of them (taken together);
  • was such as to cause;
  • a person of reasonable firmness;
  • present at the scene;
  • to fear for his personal safety

Violent Disorder

Again, this is not a frequent prosecution.

  • An offence under section 2 is triable either way. It is difficult to see circumstances in which it would be appropriate to represent that charges brought under section 2 would be suitable for summary disposition. The maximum penalty on conviction on indictment is five years' imprisonment and/or a fine of unlimited amount. On summary conviction the maximum penalty is six months' imprisonment and/or a fine not exceeding level 5.Under section 2 of the Act, it must be proved that: 
  • three or more persons;
  • present together;
  • used or threatened;
  • unlawful violence;
  • so that the conduct of them (taken together) would cause;
  • a person of reasonable firmness;
  • present at the scene;
  • to fear for his or her personal safety.
  • For the requisite standard of mens rea see section 6 of the Act. (Archbold 29-35).

This offence should only be charged in relation to instances of serious disorder falling short of those elements required to establish an offence under section 1. Planning may be an important ingredient in a case of violent disorder but regard should be had for the potential of minor incidents to flare up into serious disorder sufficient to meet the requirements of this section.

The offence may be committed in a public or private place. The relevant conduct may be directed against a person or persons or against property.

Examples of the type of conduct which may be appropriate for a section 2 offence include: 

  • fighting between three or more people involving the use of weapons, between rival groups in a place to which members of the public have access (for example a town centre or a crowded bar) causing severe disruption and/or fear to members of the public; 
  • an outbreak of violence which carries with it the potential for significant impact on a moderate scale on non-participants; 
  • serious disorder at a public event where missiles are thrown and other violence is used against and directed towards the police and other civil authorities.
  • Whilst three or more persons must have been present and used or threatened unlawful violence, it is not necessary that three or more persons should actually be charged and prosecuted: (R v Mahroof (1988) 88 Cr App R 317) (R v Fleming and Robinson(1989) 153 JP 517). The charge must make clear, however, that the defendant was one of the three or more involved in the commission of the offence.

The expression "present together" does not require any degree of co-operation between those who are using or threatening violence; all that is required is that they be present in the same place at the same time, R v NW, CA, 3 March 2010.

·         Affray

  • This is a much used allegation and a prosecutor's delight! 

An offence under section 3 is triable either way. The maximum penalty on conviction on indictment is 3 years' imprisonment and/or a fine of unlimited amount. On summary conviction the maximum penalty is 6 months' imprisonment and/or a fine not exceeding level 5.

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;
  • The seriousness of the offence lies in the effect that the behaviour of the accused has on members of the public who may have been put in fear. There must be some conduct, beyond the use of words, which is threatening and directed towards a person or persons. Mere words are not enough. Violent conduct towards property alone is not sufficient for the purposes of an offence under section 3. For a definition of 'violence' in affray see section 8 of the Act .

The offence may be committed in a public or private place.

The notional bystander test is explained in the case of (R v Sanchez [1996] Crim L R 572 CA), and asserts that the hypothetical bystander, rather than the victim, must be put in fear for his or her personal safety. Apart from the hypothetical bystander, there must be present a 'victim' against whom the violence is to be directed (I & Others v DPP (2002) 1 AC 285 HL).

It is not enough for the prosecution to prove that unlawful violence has been used. There has to be violence of such a kind that a bystander would fear for his safety. Where the violence is focused solely and exclusively on the victim, such that it would be incapable of causing a person of reasonable firmness present at the scene to fear for his safety, then the offence is not made out (Leeson v DPP, unreported (2010)).

  • to fear for his personal safety.

Section 4

By virtue of section 4(2), section 4 can occur in a public and private place but not a dwelling.

The definition of 'dwelling' is contained in section 8 of the Act . Where common parts (a communal landing) were the means of access to living accommodation, they were not part of a dwelling, even though access was via an entry phone system, and were not part of the living area or home (Rukwira v DPP 1993 Crim L R 882).

The following types of conduct are examples which may at least be capable of amounting to threatening, abusive or insulting words or behaviour: 

threats made towards innocent bystanders or individuals carrying out public service duties;  the throwing of missiles by a person taking part in a demonstration or other public gathering where no injury is caused; 
scuffles or incidents of violence or threats of violence committed in the context of a brawl (such as in or in the vicinity of a public house);  incidents which do not justify a charge of assault where an individual is picked on by a gang.

By virtue of section 31(1)(a) of the Crime and Disorder Act 1998 (as amended by the Anti-Terrorism, Crime and Security Act 2001), section 4 is capable of being charged as a discrete racially or religiously aggravated offence. Prosecutors should refer to the CPS Guidance on Prosecuting Racist and Religious Crime, elsewhere in the Legal Guidance.

Section 4A 

Section 4A carries a greater penalty than section 5 and is intended for the more directed and persistent type of behaviour required to prove the elements of intent and causation. The evidence of intention may be inferred from the targeting of a vulnerable victim.

Because it carries an equal penalty to section 4, it may also be considered appropriate for violent conduct beyond the scope of that normally considered appropriate to section 5.

Where the conduct is directed towards an individual and is so persistent that a restraining order should be sought, then proceedings under section 2 or section 4 of the Protection from Harassment Act 1997 should be considered preferable to available offences under the Public Order Act 1986.

See also  Stalking and Harassment.

By virtue of section 4(2), section 4A can occur in a public and private place but not a dwelling.

The definition of 'dwelling' is contained in section 8 of the Act . Where common parts (a communal landing) were the means of access to living accommodation, they were not part of a dwelling, even though access was via an entry phone system, and were not part of the living area or home (Rukwira v DPP 1993 Crim L R 882).

By virtue of section 31(1)(b)of the Crime and Disorder Act 1998 (as amended by the Anti-Terrorism, Crime and Security Act 2001), section 4A is capable of being charged as a discrete racially or religiously aggravated offence. 

Section 5

Whether behaviour can be properly categorised as disorderly is a question of fact. Disorderly behaviour does not require any element of violence, actual or threatened; and it includes conduct that is not necessarily threatening, abusive or insulting. It is not necessary to prove any feeling of insecurity, in an apprehensive sense, on the part of a member of the public (Chambers and Edwards v DPP [1995] Crim LR 896). 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; 
    bullying.

Racially/religiously aggravated section 4 is an either way offence, with the maximum penalty on indictment being two years imprisonment or a fine or both. The maximum penalty on summary conviction is 6 months' imprisonment or a fine not exceeding the statutory maximum, or both.

Conduct which may be capable of amounting to threatening, abusive or insulting words or behaviour for the purposes of an offence under section 4 will be more serious than that required under section 5 or section 4A.

Stalking and Harassment

This law addresses behaviour which is repeated and unwanted by the victim and which causes the victim to have a negative reaction in terms of alarm or distress. Cases involving stalking and harassment can be difficult to prosecute, and because of their nature are likely to require sensitive handling.

Protection from Harassment Act 1997

The PHA was brought into force on 16 June 1997 and was amended by the Protection of Freedoms Act 2012 to include two new specific offences of stalking, through the insertion of sections 2A and 4A. A court dealing with a person convicted of any offence, including those under sections 2, 2A, 4 or 4A of the PHA, may make a restraining order prohibiting the defendant from doing anything described in the order. This order can be made in addition to a custodial sentence or other sentence. The order can be especially useful in preventing continued stalking and harassment by defendants, including those who are given sentences of imprisonment.

Section 12 of the Domestic Violence, Crime and Victims Act 2004, as well extending the availability of restraining orders to all offences, provides the court with the power to make a restraining order even when a person has been acquitted, where the court considers it necessary to do so to protect a person from ongoing harassment from the defendant.

The PHA includes the following provisions:

  • Harassment (section 2): a summary only offence, carrying a maximum of six months' imprisonment and/or a level 5 fine;
  • Stalking (section 2A): a summary only offence, carrying a maximum of six months' imprisonment and /or a level 5 fine;
  • Fear of violence (section 4): an either way offence, carrying a maximum of five years' imprisonment and/or a fine on indictment;
  • Stalking - involving fear of violence or serious alarm or distress (section 4A): an either way offence, carrying a maximum of five years' imprisonment and/or a fine on indictment;
  • Breach of a civil injunction (section 3(6)): an either way offence, carrying the same penalty as for the section 4 offence;
  • Breach of a restraining order (section 5(5)); an either way offence, carrying the same penalty as for the section 4 offence;
  • A civil tort of harassment, created by section 3.

Section 2A and 4A stalking offences which are also racially and religiously aggravated are now also covered under section 32 of the Crime and Disorder Act 1998 (CDA).  

Harassment

In this legal guidance, the term harassment is used to cover the 'causing alarm or distress' offences under section 2 of the Protection from Harassment Act 1997 as amended (PHA), and 'putting people in fear of violence' offences under section 4 of the PHA. The term can also include harassment by two or more defendants against an individual or harassment against more than one victim.

Although harassment is not specifically defined it can include repeated attempts to impose unwanted communications and contacts upon a victim in a manner that could be expected to cause distress or fear in any reasonable person.

The harassment of another or others can include a range of offences such as those under: the Protection from Harassment Act 1997; the Offences Against the Person Act 1861; the Sexual Offences Act 2003; and the Malicious Communications Act 1988. It is important when considering this type of offending to look at all relevant legislation when formulating charges.

Closely connected groups may also be subjected to 'collective' harassment. The primary intention of this type of harassment is not generally directed at an individual but rather at members of a group. This could include: members of the same family; residents of a particular neighbourhood; groups of a specific identity including ethnicity or sexuality, for example, the racial harassment of the users of a specific ethnic community centre; harassment of a group of disabled people; harassment of gay clubs; or of those engaged in a specific trade or profession.

Harassment of an individual can also occur when a person is harassing others connected with the individual, knowing that this behaviour will affect their victim as well as the other people that the person appears to be targeting their actions towards. This is known as 'stalking by proxy'. Family members, friends and employees of the victim may be subjected to this.

Certain groups of professionals are particularly susceptible to harassment connected with their work. These include doctors, judges, police officers, teachers and other authority and public figures. It may also involve harassment of individuals as a result of their employment by a particular employer.

Stalking

The Protection of Freedoms Act 2012 created two new offences of stalking by inserting new sections 2A and 4A into the PHA 1997. The two offences are in force from 25 November 2012 and provide further options for prosecutors to consider when selecting charges. 

Whilst there is no strict legal definition of 'stalking', section 2A (3) of the PHA 1997 sets out examples of acts or omissions which, in particular circumstances, are ones associated with stalking. These include: physical following; contacting, or attempting to contact a person by any means (this may be through friends, work colleagues, family or technology); or, other intrusions into the victim's privacy such as loitering in a particular place or watching or spying on a person.

Our comment might be as to Romeo's problem's if he and Juliet lived in modern day Little Venice, London!

 

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