Public Order

Question 1

Public disorder is characterised by what?

Answer 1

Disruptive behaviour which deprives others of the peace and quiet to which they are entitled.

Therefore, it includes a wide range of scenarios and perceived nuisances.

Question 2

Maintaining a democratic, orderly and cohesive society governed by the rule of law is at the very heart of Robert Peel’s British Model of Policing.

Nine principles of policing were defined, known as what?

Answer 2

The ‘Peelian Principles’

One of these principles was that the police should “prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment”.

To this day, when police officers are attested in their role, they take an oath, that they will “uphold fundamental human rights and … cause the peace to be kept and preserved and prevent all offences against people and property…”.

Question 3

Public disorder, as relevant to the Public Order Act 1986, occurs for a variety of reasons ranging from…

Answer 3

Small scale domestic disagreements (which may escalate into incidents that negatively affect a neighbourhood) to protests (which may have begun legitimately and peacefully but which escalate into rioting).

Question 4

What Human Rights Act Articles relate to Public Order and/or protests?

Answer 4

Human Rights Act 1998

Article 5: The right to liberty and security

Article 9: Ability to form our own ideas, thoughts and religious convictions.

Article 10: The freedom of expression.

Article 11: Freedom of peaceful assembly and association.

Articles 9, 10 and 11 are often taken together to mean ‘a right to peaceful protest’.

This has now become common lexicon amongst the Police and Public alike, but we should know that there is actually no such right per se. For any public demonstration, protest or rally the rights of the wider community must be considered and a balance struck.

Question 5

One of the fundamental duties of an officer is the preservation of ‘The Queen’s Peace’, which can be described in terms of what?

Answer 5

The normal state of peace and tranquility which citizens are entitled to expect, in an ordered society.

Question 6

A breach of the peace is committed when?

Answer 6

Harm is done to a person or when harm is likely to be done to a person.

In the presence of a person, harm is done to their property.

Whenever a person is in fear of being harmed through assault, riot, disturbance.

Question 7

When there is a breach of this peace or when a breach is imminent, common law gives all citizens (not just police officers) powers to do what?

Answer 7

Arrest or use such force as is reasonable against the person committing the breach.

Question 8

When there is a breach of this peace or when a breach is imminent, common law gives officer entitlement to do what?

Answer 8

Enter either private or public premises to make an arrest for a breach of the peace, or to prevent such a breach.

Question 9

Powers of arrest and entry for breach of the peace

Any person (including a police officer) can arrest :-

Answer 9

Where a breach of the peace is committed by the person arrested in the presence of the person making the arrest;

OR

Where the person making the arrest reasonably believes that such a breach will be committted in the immediate future by the person whom he arrested;

OR

Where a breach of the peace has been committed by the person arrested and the person making the arrest reasonably believes that renewal of it is threatened.

must be both REAL and IMMINENT.

Question 10

Under common law is an officer entitled to enter either private or public premises to make an arrest for the breach of peace?

Answer 10

Yes, although once the breach has come to an end the officer should not remain on private premises and should leave within ‘reasonable time’.

If assaulted during this time = assault of a police officer in the lawful execution of their duty.

If unreasonable time spent = presence unlawful = might not be protected under criminal law (Robson v Hallet [1967])

Question 11

What happens after an arrest for breach of peace?

Answer 11

Officer can release a person without further action when it is deemed the risk of a breach no longer exists.

OR

(s 3(2)(c) of the Prosecution of Offences Act 1985)

CPS may decide that further action is needed to reduce the risk of another breach. The person will appear before a magistrates court, which can issue a binding-over order which can refer to general terms of protection, or it can be more specific by naming people.

Order can require the person to keep the peace for a specified times and/or enter the recognisance for a specified sum (financial penalty if brought back after any subsequent breaches).

Question 12

The Public Order Act 1986 defines a variety of public order offences. The key offences are what/

Note that the offences range in order of severity from most severe (section 1) to least severe (section 5):

Answer 12

1. Riot
2. Violent Disorder
3. Affray
4. Fear or provocation of violence
   4a. Intentional harassment, alarm or distress
5. Non-intentional harassment, alarm or distress

Question 13

There is a subtle difference between each of the offences in The Public Order Act 1986 and you need to study this section carefully to fully understand it. In particular, for each offence, pay attention to:

Answer 13

what behaviour is required (words / actions / signs / representations etc)?

what intention is required (is a specific intent required)?

what outcome is required (does anyone need to be present, if so, what effect on them is required)?

where can the offence be committed?

what defences are available?

Question 14

Section 1 of the Public Order Act 1986

Answer 14

Riot

Where 12 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 firmness 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.

Question 15

Section 2 of the Public Order Act 1986

Answer 15

Violent Disorder

Where 3 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 firmness present at the scene to fear for his personal safety…

each of the persons using or threatening unlawful violence is guilty of violent disorder.

Question 16

Section 3 of the Public Order Act 1986

Answer 16

Affray

A person commits affray if he/she uses or threatens unlawful violence towards another and…

his/her conduct is such as would cause a person of reasonable firmness present at the scene to fear for his/her personal safety.

Question 17

Section 4 of the Public Order Act 1986

Answer 17

Fear or Provocation of Violence

A person is guilty of an offence if he/she…

(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.

Question 18

Section 4A of the Public Order Act 1986

Answer 18

Intentional Harassment, Alarm or Distress

s4A(1) states that a person is found guilty of an offence if, with intent to cause a person harassment, alarm or distress he/she…

(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.

Question 19

Section 5 of the Public Order Act 1986

Answer 19

Non-Intentional Harassment, Alarm or Distress

A person is guilty of an offence if he/she…

(a) uses threatening or abusive words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening or abusive, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Question 20

What locations apply with public order offences?

Answer 20

S1 through to section S5 all state that 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 or another dwelling.

Therefore, note that the offence can be committed in public and private places, but not in any dwelling.

For example, if you have an argument with your neighbour whilst both inside your houses (or other peoples’ houses), this would not be a public order offence as long as nobody in the street outside can see or hear you. However, if one or both of you were outdoors in the street, this would be an offence.

Question 21

How does the Public Order Act include offences to address ‘stirring up’ or inciting hatred on the grounds of race, religion or sexual orientation?

Answer 21

The threshold for s18-23 offences (inciting racial hatred) is threatening, abusive or insulting whereas the threshold for s29 offences (inciting hatred against religious/sexual orientation) is higher but also only includes threatening.

Offences may be committed in a public or a private place, except that no offence is committed where the words or behaviours are used, or the written material is displayed, by a person inside any dwelling and are not heard or seen except by other persons in that or any other dwelling.

Question 22

If a person commits an offence contrary to Section 4, Section 4A or Section 5 of the Public Order Act 1986 which is racially or religiously aggravated, they may receive…

Answer 22

a more severe penalty under Section 31 of the Crime and Disorder Act 1998.

Question 23

Offences under ss 5, 4A and 4.

Answer 23

5 and 4A are used for relatively minor forms of public disorder such as persistent swearing and shouting.

Section 4 is used for more serious public disorder, involving fear or provocation of violence.

Question 24

s4

Intentions of suspect…

Recipient of the conduct…

Includes disorderly behaviour…?

Distribution of material…?

Outcome of the behaviour…

Answer 24

Intends to cause fear or violence or to provoke violence

Conduct aimed towards a specific person

More than disorderly behaviour

Includes distribution of material

No specific outcome is required to prove this offence

Question 25

s4A Intentions of suspect... Recipient of the conduct... Includes disorderly behaviour...? Distribution of material...? Outcome of the behaviour...

Answer 25

Intends to be threatening, abusive or insulting. Conduct does not have to be aimed towards a specific person. Includes disorderly behaviour. No distribution of material. An identifiable person must be harassed, alarmed or distressed.

Question 26

s5 Intentions of suspect... Recipient of the conduct... Includes disorderly behaviour...? Distribution of material...? Outcome of the behaviour...

Answer 26

No intention, but is aware that the conduct is threatening or abusive. Conduct does not have to be aimed towards a specific person (but has to be carried out in the hearing or sight of a person likely to be caused harassment, alarm or distress). Includes disorderly behaviour. No distribution of material. No specific outcome is required to prove this offence.No intention, but is aware that the conduct is threatening or abusive. Conduct does not have to be aimed towards a specific person (but has to be carried out in the hearing or sight of a person likely to be caused harassment, alarm or distress). Includes disorderly behaviour. No distribution of material. No specific outcome is required to prove this offence.

Question 27

What are defences to a s 5 offence?

Answer 27

He/she was in a public place but had no reason to believe anyone could see/hear He/she was inside a dwelling (place of residence) and had no reason to believe that the words, behaviour or conduct could be seen or head by a person in a public place. That the conduct was reasonable and did not cause anybody to be harassed, alarmed or distressed.

Question 28

What are defences to a s 4A offence?

Answer 28

He/she had no reason to believe his/her words, behaviour or conduct inside a dwelling could be seen or heard by a person anywhere outside. His/her conduct was reasonable

Question 29

To prove that an offence is racially or religiously aggravated, the prosecution has to prove the ‘basic’ offence, followed by racial or religious aggravation. An offence will be racially or religiously aggravated if:

Answer 29

- At the time of the offence (or shortly before or after), the offender demonstrates to the victim hostility based on the victim's membership (or presumed membership) of a racial or religious group, or - The offence is motivated wholly or partly by hostility towards members of a racial or religious group based on their membership (or presumed membership) of that group.

Question 30

Section 18 of the Public Order Act 1986 Use of words or behaviour or display of written material.

Answer 30

A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if— (a) He intends thereby to stir up racial hatred, or (b) Having regard to all the circumstances racial hatred is likely to be stirred up thereby. 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 written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling.

Question 31

Section 19 of the Public Order Act 1986 Publishing or distributing written material.

Answer 31

A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if— (a) He intends thereby to stir up racial hatred, or (b) Having regard to all the circumstances racial hatred is likely to be stirred up thereby. Defence to prove that he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.

Question 32

Section 21 of the Public Order Act 1986 Distributing, showing or playing a recording.

Answer 32

A person who distributes, or shows or plays, a recording of visual images or sounds which are threatening, abusive or insulting is guilty of an offence if— (a) He intends thereby to stir up racial hatred, or (b) Having regard to all the circumstances racial hatred is likely to be stirred up thereby.

Question 33

Section 29 of the Public Order Act 1986 Interpretation

Answer 33

29A: “Religious hatred” means hatred against a group of persons defined by reference to religious belief or lack of religious belief. 29B: “Hatred on the grounds of sexual orientation” means hatred against a group of persons defined by reference to sexual orientation. 29C: "Publishing or distributing written material" - A person who publishes or distributes written material which is threatening is guilty of an offence if he intends thereby to stir up religious hatred 29D: "Public performance of play" - If a public performance of a play is given which involves the use of threatening words or behaviour, any person who presents or directs the performance is guilty of an offence if he intends thereby to stir up religious hatred 29E: "Distributing, showing or playing a recording" - A person who distributes, or shows or plays, a recording of visual images or sounds which are threatening is guilty of an offence if he intends thereby to stir up religious hatred 29F: "Broadcasting or including programme in programme service" - If a programme involving threatening visual images or sounds is included in a programme service, each of the persons mentioned in subsection (2) is guilty of an offence if he intends thereby to stir up religious hatred 29G: "Possession of inflammatory material" - A person who has in his possession written material which is threatening, or a recording of visual images or sounds which are threatening, with a view to— (a) In the case of written material, its being displayed, published, distributed, or included in a programme service whether by himself or another, or (b) In the case of a recording, its being distributed, shown, played, or included in a programme service, whether by himself or another, is guilty of an offence if he intends 29H: "Powers of entry and search" - a justice of the peace is satisfied by information on oath laid by a constable that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of section 29G, the justice may issue a warrant under his hand authorising any constable to enter and search the premises where it is suspected the material or recording is situated.

Question 34

Entries onto private property are governed by what section of PACE?

Answer 34

s 17 PACE 1984 Entry without a warrant provide that a constable may enter and search any premises for the purposes of – - Arresting a person for an indictable offence: section 17(b); - Arresting a person for an offence under section 4 of the Public Order Act 1986: section 17(c)(iii); and/or - Saving life or limb or preventing serious damage to property: section 17(e). Officers may use reasonable force in the exercise of these powers, if necessary (section 117 of PACE).