FreeB.E.A.G.L.E.S.: Legal Advice for Activists (v4)

Sections 1-3 of the Public Order Act 1986 are the most serious and carry the most serious penalties. Riot carries up to 10 years, Violent Disorder 5 yeas and Affray 3 years. The underlying thread for each is that violence must be used or threatened and that this would cause a hypothetical person of reasonable firmness to fear for their personal safety.

Thus the test for whether or not an offence has been committed is an objective one, and the prosecution do not have to rely on witnesses who were actually in fear. In practice there will usually be witnesses, however, as it would otherwise be very difficult to prove the offence. But the witnesses themselves do not necessarily have to attest that they feared for their personal safety.

Riot is indictable only. Violent disorder and affray are “either way” offences, triable in magistrates or the Crown Court. Charges of violent disorder and affray may often be used as an alternative to assault causing actual or grievous bodily harm if there is insufficient evidence in such a case.

12.2 Section 1 - Riot

This is the most serious offence under the Public Order Act 1986 and is very rarely used. Although you are unlikely ever to get charged with riot, it is useful to have an understanding of it, in order to put the other offences in to context.

Notes on Riot
There are several possible reasons why this offence is not often used. Unlike the offence of violent disorder it must be proved that the accused himself actually used rather than merely threatened violence, and the violence of the group must be used or threatened for a common purpose. This can be quite difficult to prove and the prosecutor will not usually deem an offence so serious as to incur these added complications, when one of the lesser public order offences will suffice.

The prosecution has to show that you intended violence or were aware that your conduct might be violent.

Arrest and Punishment
Riot carries a maximum sentence of 10 years in prison, and is thus an “arrestable offence”.

12.3 Section 2 - Violent Disorder

This is the more likely charge in the case of serious public disorder. In order to be liable the accused must use or threaten violence in the following circumstances:

a) Only 3 persons who are present together are required to use or threaten violence (unlike ‘affray’- see below)
b) The accused person may be guilty if he merely threatens violence.
c) There is no requirement that the violence be used or threatened for a common purpose.

The prosecution must show that you intended to use or threaten violence or were aware that your conduct might amount to violence or the threat of violence.

Charges of violent disorder are usually only brought where there has been serious disorder. In animal rights cases it is usually only used where missiles have been thrown at persons or property.

The police will sometimes arrest you initially on suspicion of violent disorder simply because it is an “arrestable offence” and therefore carries with it far greater powers of arrest and search. For example, you can be arrested after the incident has taken place. And if you are arrested on a demonstration for violent disorder, your house can be searched while you are in detention, whereas if you are arrested for Section 4A intentional harassment (non-arrestable) it cannot.

Research suggests that charges of violent disorder rather than affray will be brought where the police believe the violence is planned or premeditated.

Arrest and Punishment
‘Violent disorder’ is triable either way although it will usually be tried on indictment. It carries a maximum sentence of 5 years on indictment or 6 months before magistrates and is therefore an “arrestable offence”. At a trial on indictment, a jury will usually have the alternative option of convicting the defendant of the lesser offence of threatening behaviour (Section 4 of the act).

12.4 Section 3 - Affray

The offence of “affray” looks very similar to violent disorder. It is supposed to be reserved for serious cases involving the use or threat of violence.

Notes on Affray
Unlike riot and violent disorder the use or threat of violence by one person alone will suffice and no one else need take part other than the accused. Legal commentators, however, have contended that the offence should not be extended to cover every case of common assault as this was not intended by Parliament when the act was passed. Affray is a public order offence designed for the protection of the bystander and there are other offences – eg “assault causing actual bodily harm” - for the protection of persons at whom the violence is aimed.
Another significant difference from the other sections is that the threat of violence cannot be made by the use of words alone – either orally or in writing. There must be some act or gesture amounting to a threat of unlawful violence.

The prosecution must show – as with violent disorder - that you intended to use or threaten violence or were aware that your conduct might amount to violence or the threat of violence.

Arrest and Punishment
Affray is an “either way” offence and is punishable by up to 3 years imprisonment on indictment or up to 6 months imprisonment on summary conviction. It is therefore not an “arrestable offence”. But as with Sections 4, 4A and 5 it does carry a limited power of arrest: a constable may arrest anyone whom he reasonably suspects is committing an affray.

12.5 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. Sections 4A and 5 are the ones you will most often encounter on demos.

12.6 Section 4 – Fear or Provocation of Violence

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 - ie 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
Section 4 is triable summarily only, and the maximum penalty is 6 months imprisonment. 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.

12.7 Section 4A - Intentionally causing harassment, alarm or distress

A person is guilty if, with intent to cause a person harassment, alarm or distress, he

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
Section 4A is triable summarily only and carries a maximum sentence of 6 months imprisonment. It is therefore 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.

12.8 Section 5 - Conduct likely to cause harassment, alarm or distress

This is by far the most commonly used piece of legislation on demos, and the one with which activists will be most familiar. A person is guilty of this offence if he

Notes on Section 5
The police will often warn you under Section 5 simply as a preventive power to control behaviour on a demo and they often have no intention of following it through with an arrest, especially where no threatening behaviour has been used.

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.

Displays of Upsetting Pictures
The police sometimes threaten protestors with prosecution under Section 5 for displaying upsetting pictures eg of dead animals. It has been held in court that an upsetting picture can be “insulting” within the ordinary meaning of the word, in a case where pictures of aborted fetuses were displayed to persons attending an abortion clinic. However, in our opinion most animal rights placards could not similarly be held to be insulting in the ordinary meaning of the word. This is especially so as the prosecution must also show that you intended or were aware that your conduct might be insulting (see below).

Megaphones
The police occasionally tell activists that it is an offence under Section 5 to use a megaphone or other instrument to amplify sound. This is clearly not the case. Use of a megaphone does not, in itself, amount ‘threatening, insulting, abusive or disorderly behaviour”. However, if you were to shout insulting and abusive comments through a megaphone or point it deliberately in someone’s face, this could amount to an offence. Also bear in mind that there are sometimes local bye-laws prohibiting amplified sound in public areas.

Defences
It is a defence to show that you had no reason to believe that there was any person within sight or hearing likely to be caused harassment etc. This is an objective test and you will be judged on what you ought to have believed rather than what you actually believed.

The prosecution also has to show that you intended your words or behaviour to be threatening, insulting or abusive or were aware that they might have this effect. So if you are charged with displaying an upsetting picture or placard under Section 5, you will have a defence under this section – ie that you had no idea that the picture was threatening insulting or abusive”

You have a statutory defence that your conduct was “reasonable” – see notes on Section 4A above.

Arrest and Punishment
Section 5 is triable summarily only, the maximum penalty is a fine, and it is not an “arrestable offence”. A constable may only arrest if:

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. This is not defined, but conduct taking place over an hour later could not, in our view, be defined as taking place shortly afterwards and an arrest here would be unlawful.

You might receive several arrest warnings under Section 5 during the course of a demo and still not be arrested. This is because the warning is usually used to control public order, although the police may well arrest you if the disorderly conduct continues. You can often tell whether the police genuinely mean to arrest you or not. There is also the power of arrest for breach of the peace and under Section 25 PACE .

Many activists assume that if they are warned under Section 5 and commit no further offence, then they will not be prosecuted. Although this is usually the case, you can actually be prosecuted – by way of a summons – for just one breach of Section 5. Recent overzealous policing tactics at animal rights protests has consisted of police demanding peoples’ names and addresses under Section 25 of PACE in order to serve them with a summons for a single offence under Section 5. As Section 5 is a non-arrestable offence, the police do have the power to do this, and can arrest you if you refuse to give your detail.

This article is for information purposes only; its aim is to let people to know their full rights under UK law. Nothing on these pages is absolute as the law is always changing; if in doubt contact a trusted solicitor for further advice. We do not encourage you to break the law.

Please feel free to copy and distribute these articles to fellow activists, but do not alter the text in any way. These articles are anti-copyright for non-commercial purposes. Please visit www.freebeagles.org for the latest version of our articles and to learn about the freeBEAGLES Ethical Open Document License under which this document is distributed.

If you see any errors, or we have missed any changes to the legal situation please contact us as soon as possible, at info@freebeagles.org, as wrong information can prove costly to people's freedom.

LEGAL ADVICE FOR ACTIVISTS

12. Sections 1-5, Public Order Act 1986

Contents