Civil Liberties Public

Order Law II
Anna Grear
University of the West of
England

1
Introduction


Public Order Offences

Common Law Breach of the Peace

A Parting Reflection on some
Critical Themes

2
Public Order Offences

Introductory matters

Riot

Violent Disorder

Affray

Fear or Provocation of Violence

Harassment, Alarm or Distress

Conclusion on the offences

3
Public Order Offences - Introductory matters

Criminal offences - three aspects of concern to civil liberties lawyers:

• can be used to restrict protest rather than disorder

• the problem of disorder itself – to what extent is it acceptable for a society
to insist on ‘order’?
• sometimes directed at what people say, rather than what they do.

The Public Order Act 1986

Abolished several common law offences relating to violent or disorderly
public expression - along with an existing legislative catch-all prohibition on
publicly using threatening, abusive, or offensive words likely to cause a
breach of the peace. Replaced these with five statutory crimes (contained
mostly in Part I POA 1986).

Recurring concept = ‘unlawful violence’ (replaced common law ‘breach of

the peace’ concept in the statutory context. ‘Violence’ = ‘any violent
conduct’ (s 8) - includes violence towards property. 4
 Public Order Offences - Riot
Defined in s 1 POA 1086. A serious offence designed to deal
with groups acting together in a way that causes, or could
cause, violence. The section defines a
Context Behaviour in the
(Can be
committed in 12 or more people context will be an
public or in Using or threatening offence
private) ‘unlawful violence’ Guilty if a
Requires Acting for a common person
consent of DPP purpose actually uses
for prosecution violence +he
Would cause a intends to use
‘person of reasonable violence or is
firmness present at aware that
the scene to fear for his conduct
his personal safety’ may be
(no such person needs violent’ (s
to be present: s 1(4)). 6(1)). 5
 Public Order Offences - Violent disorder
Offence was created by s 2 POA. The White Paper that led up to the POA
anticipated that this would be the most usual charge in relation to ‘serious
outbreaks of public disorder’ (Review of Public Order Law, Cmnd 9510,
1985 para 3.13).The section defines a
Context Behaviour in the
(Can be
committed in At least 3 people context will be an
public or in (taken together) using offence
private: s 2(4)) or threatening
‘unlawful violence’ Mental
element:
No need for a intention or
Does not common purpose awareness
require consent
Would cause a that the
of DPP for
‘person of reasonable behaviour is
prosecution.
firmness present at or may be
the scene to fear for violent, or
his personal safety’ may threaten
(no such person needs violence (s
to be present). 6(2)). 6
 Public Order Offences - Affray
S 3 of the Act. The section defines a

Context Behaviour in the

(Can be
committed in Individual using or context will be an
public or in threatening ‘unlawful offence
private: s 3(5)) violence’ towards
another person - not Guilty if uses or
property. threatens violence
towards another
A constable Would cause a person.
may arrest ‘person of reasonable
without warrant firmness present at Mental element =
anyone he the scene to fear for intends to use or
reasonably his personal safety’ threaten violence
suspects is (no such person needs or is aware that his
committing to be present (s 2(4)). conduct may be
affray (s 3(6)) violent or threaten
violence. (s 6(2)). 7
Public Order Offences: Fear of or Provocation of
Violence (s 4)
This offence involves: •Use towards another
•Threatening abusive insulting words
or behaviour
•Spoken, written, or
image/representation
•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 8
provoked.
Public Order Offences: Fear of or Provocation of Violence
(s 4) (cont)
For an offence to be committed under this provision the person must
employ threatening, abusive or insulting words or behaviour.
Freedom of speech implications: courts need to draw distinction between
words or actions that might be regarded as shocking or unpopular, and those
which are truly insulting to a particular person or their beliefs.
Brutus v Cozens [1972] 2All ER 1297: the word ‘insulting’ should be given
its natural meaning. Whether any particular words or behaviour are capable
of being ‘threatening, abusive or insulting’ should be regarded as a matter of
fact, not law.
‘[v]igourous…distasteful or unmannerly speech or behaviour is permitted
so long as it does not go beyond any one of three limits. It must not be
threatening. It must not be abusive. It must not be insulting. I see no
reason why any of these should be construed as having a specially wide or a
specially narrow meaning. They are all limits easily recognisable by the
ordinary man. Free speech is not impaired by ruling them out. But before a
man can be convicted it must be clearly shown that one or more of them has 9
been disregarded’ (Lord Reid)
Public Order Offences: Fear of or Provocation of Violence (s 4)
(cont)
Atkin v DPP (1989) 153 JP 383 it was held that the ‘other person’ towards whom
the words or behaviour are directed must be present when the threats etc are
made. The fact that they were reported to him shortly afterwards, causing him to
be frightened for his safety was not enough
Jordan v Burgoyne [1963] 2 All ER 225: once the threatening, abusive or
insulting words or behaviour had taken place, the defendant had to take his
audience as he found them, and will be responsible if the audience react in a way
that is unlawful under the Act.
R v Horseferry Road Justices, ex parte Siadatan [1990] Crim LR 598. The case
concerned the publication of the Satanic Verses by Salman Rushdie – an action
was brought against the publishers under s 4, based on the claim that it contained
abusive and insulting writing and was likely to provoke violence by Muslims
because of its allegedly blasphemous nature. The issue in the case was whether
the words ‘such violence’ when they appear in s 4 means ‘unlawful violence’ or
‘immediate unlawful violence’: held ‘immediate’ does not mean ‘instantaneous’
but does require proximity in time and causation. 10
 Public Order Offences: Harassment, Alarm or Distress (s 5
and 4A)
There are two offences in the POA based on the causing of ‘harassment, alarm
or distress’. S 5 was originally included in the Act when it was passed, and s
4A was added by the Criminal Justice and Public Order Act 1994.

Can be committed
•threatening, abusive or insulting
in public or
words or disorderly behaviour
private - but not
in a dwelling (s •(or displays any writing, sign, or
5(2)). visible representation which is
threatening, abusive or insulting)
•within the hearing or sight of a
person
•likely (likely in fact) to be caused
harassment, alarm or distress (not
actually caused HAD).

11
Public Order Offences: Harassment, Alarm or Distress
(s 5 and 4A) (cont)

Three specific defences set out in s 5(3). (The burden of proof is one
the accused). The defences are:

•that the accused had no reason to believe that there was anyone able to
see or hear the behaviour who might be harassed, alarmed or distressed;
or
•that the accused was inside a dwelling and had no reason to believe that
the conduct would be seen or heard by someone outside a dwelling; or
•the conduct was reasonable.

Under s 6(4) of the Act a person is only guilty of the offence if he

intends, or is aware, that the words or behaviour or disorderly conduct
were, or were likely to be, threatening, abusive or insulting.

DPP v Clarke [1992] Crim LR 60 contrasted with DPP v Fiddler [1992]

1 WLR 91
12
Public Order Offences: Harassment, Alarm or Distress (s 5
and 4A) (cont)

In addition to s 5, s 4A adds the offence of threatening behaviour. S 4A makes

it unlawful to cause intentional harassment, alarm or distress.

The defendant must intend (not just be aware of) the consequences of using
threatening, abusive or insulting words or behaviour or disorderly behaviour
with intent to cause a person harassment, alarm or distress.

Unlike s 5, for liability under s 4A, the consequence must occur.

Both the offence under s 5 and under s 4A provide a defence. The accused can
raise the defence if he can prove that his conduct was reasonable (s 5(3)(c) and
s 4A(3)(b)). The term ‘reasonable’ is not defined in the Act, but it is clear that
conduct will not be regarded as reasonable simply because the accused were
seeking to exercise their right of free speech and assembly on matters of public
concern.
13
Public Order Offences: Harassment, Alarm or Distress (s
5 and 4A) (cont)
What is the relationship between "Insulting" conduct, its "reasonableness",
and the HRA.
A Geddis, ‘Free Speech Martyrs Or Unreasonable Threats To Social
Peace? - "Insulting" Expression And Section 5 Of The Public Order Act
1986’ (2004) Public Law article.
Geddis examines three cases in which the courts have carried out the HRA
balancing act when deciding whether some particular application of
domestic law is consistent with the individual right to freedom of
expression: ‘The courts -- at the lower levels, anyway --
Percy v DPP still appear to be "exhibit[ing] a preference for
public peacefulness and the avoidance of
Norwood v DPP incitement over freedom of expression" when
considering whether the expression of some
Hammond v DPP individual dissenter constitutes a breach of s.5
of the Act.’
14
Common Law Breach of the
Peace

Police have a general duty to
preserve the peace

Power overlaps with statutory
power to some extent

Broad, vague power - can
undermine attempts in statute to
carve out more clearly defined
areas of liability.

15
Common Law Breach of the Peace
Breach of the peace can be used against a person both directly and
indirectly.
•Directly, it can be used as the basis of a specific criminal offence, as
under s 4 of the POA 1986, or of arresting a person for committing or
inciting a breach of the peace.
• Indirectly, the police can use the breach of the peace as the basis of
taking action to control a potential breach of the peace and arrest a
person who obstructs them in the execution of that duty.

Definition: An act done or threatened to be done which

either actually harms a person, or in his presence his
property, or is likely to cause such harm, or which puts
someone in fear of such harm being done: R v Howell
[1982] QB 416 (the leading pre-HRA case on breach of
the peace).
16
Common Law Breach of the Peace

Beatty v Gillbanks (1882) 9 QBD 308

Duncan v Jones [1936] 1 KB 218
Piddington v Bates [1861] 1 WLR 162
Moss v McLachan [1985] IRLR 77
Redmond Bate v DPP (1999) 163 JP 789

Stone comments that the decision in Redmond-Bate must cast doubt on

whether Duncan v Jones or Piddington v Bates would be decided the
same way now. He suggests that this conclusion is supported by the
decision of the EctHR in Steel and others v UK - you should read this
case for yourselves, ideally.

17
Some parting reflections on
critical themes


‘Protest’ and ‘Order’
 Protest Disorder and Riot
 Peace, Order and ‘Public Order’

‘Balance’

18
Some parting critical reflections: Protest and Order

Public protest and public order share a number of characteristics.

Both ideas are appealing. Both are commonly cited as fundamental
parts of democracy. Both also share ‘generally respectable, if
incompatible, historical lineages’. (Whitty et al, 71)

In historical perspective, several things become clear:

•the prevalence and diversity of both protest and disorder

• the contribution that they have made to positive social change
•that throughout history there seems to be the belief that a ‘golden
age’ of orderliness existed about 20 years ago
•that we tend to fear extreme examples of both protest and order (riot
v police state)
•the fear of disorder tends to distort memory and perception
•both protest and order are elusive in definitional terms.

19
Some parting critical reflections: Protest and Order

Definitions of protest, disorder and order can never be neutral or simply

descriptive. The meanings given to particular manifestations of protest,
disorder and order depend on perspective. Note thought that law, like
any other ‘authoritative perspective’ not only cloaks other perspectives,
but also cloaks the important point that perspectives are in play at all.

Protest, disorder and riot

Protest power and ‘extraordinary politics’: (in the UK - 1996 Newbury

Bypass protest, protests against live animal exports at sea ports and
airports, the 1998 Countryside march, anti-war marches against the
American and British attack on Iraq.) Mixed meanings of protest -
democracy needs more than ‘anti-politics’ (Euchner)

The key question: how can we harness the democracy-forging character

of public protest while also controlling any unwanted side effects?

Civil Disobedience and Riot - violence/non-violence - social conditions 20

v individual responsibility - racialisation of ‘riot and disorder’.
Some parting critical reflections: Protest, Disorder and Riot
Politicisation of ‘law and order’ and the general racialisation of riot
and disorder:

‘This is part of a more general tendency of associating disorder with

“outsiders” and thereby distancing it from “mainstream” society,
which in turn helps to prop up the notion of societal consensus on
public order. It frequently evokes discriminatory ideas about cultural
proclivities and generational, or familial, breakdown. It also feeds
off an historical amnesia that allows accounts of a mythical past free
of unrest and disorder to flourish.’ (Whitty et al, 76)
The notion of public protest and public disorder is rife with
problematic assumptions and complexities.

21
Some parting critical reflections: Peace, Order and ‘Public
Order’

According to Whitty et al, ‘order’ evokes inconsistent images –

peacefulness and tranquillity, but also coercion and imposition. They
suggest that competing interpretations of the idea of order have been
multiplied by recent ‘law and order’ politics.

A key question: whose view of order is public order?

‘Most criminal laws define acts … people may disagree as to whether the
act should be illegal… but there is little disagreement as to what the
behaviour in question consists of. Laws regarding disorderly conduct and
the like assert, usually by implication, that there is a condition (‘public
order’) that can be diminished by various actions. The difficulty, of course,
is that public order is nowhere defined and can never be unambiguously
defined because what constitutes order is a matter of opinion and
convention, not a state of nature’. (JQ Wilson, Varieties of Police
Behaviour (Harvard, 1968)). 22
Some parting critical reflections: ‘Balance’
The idea of balance - metaphor - reflects play off between freedom to
protest and the power of the state to control the unwanted side effects
of protest. (Appears throughout public order law, and underpins the
entire ECHR.)
A problematic concept: vague - potentially empty metaphor.
‘Balance’ in 1986 Public Order Act - Ewing and Gearty suggest that
the Act ‘threatens to permit only those demonstrations that are so
convenient that they become invisible’. (Freedom under Thatcher:
Civil Liberties in Modern Britain (Oxford, OUP, 1990) at 121).
The Act conceives of ‘community’ as if it is a monolithic thing - what
if ‘community’ is divided? Whose community? Are the protestors not
a ‘community of interest’? Is public protest not a communal activity?

23
Parting critical reflections: Balance (cont)
What does balance mean?

Balance is a potentially empty metaphor unless we know

exactly what we are balancing. It is very easy to speak in
terms of balance, and because of the complexity of the
issues involved and the nature of the assumptions
underlying public order law, to end up with something that
parades as ‘balance’ wearing the clothes of zero-tolerance.
What does this reveal? What is the real meaning of
‘balance’ and the currently widely used but under-defined
notions of ‘public order’ and ‘disorder and protest’?

24