Monday 1 November 2010

Public Order Offences Incorporating the Charging Standard Updated 24 June 2010


 
Introduction

The criminal law in respect of public order offences is intended to penalise the use of violence and/or intimidation by individuals or groups. The principal public order offences are contained in Part I of the Public Order Act 1986 ('the Act'). Reference is also made to the offence of drunk and disorderly behaviour and offences involving emergency workers and disorderly behaviour on NHS premises, which prosecutors may consider as alternatives to the offences under the Public Order Act. This document provides guidance about the charge which should be preferred if the criteria set out in the the Code for Crown Prosecutors are met.
Charging Standard - Purpose

The charging standard below, gives guidance concerning the charge which should be preferred if the criteria set out in the Code for Crown Prosecutors are met. The purpose of charging standards is to make sure that the most appropriate charge is selected, in the light of the facts, which can be proved, at the earliest possible opportunity.
Adoption of this standard should lead to a reduction in the number of times charges have to be amended which in turn should lead to an increase in efficiency and a reduction in avoidable extra work for the police, CPS and the courts.

The guidance set out in this charging standard:
should not be used in the determination of any investigatory decision, such as the decision to arrest;

does not override any guidance issued on the use of appropriate alternative forms of disposal short of charge, such as cautioning or conditional cautions;

does not override the principles set out in the Code for Crown Prosecutors;

does not override the need for consideration to be given in every case as to whether a charge/prosecution is in the public interest;

does not remove the need for each case to be considered on its individual merits or fetter the discretion to charge and to prosecute the most appropriate offence depending on the particular facts of the case.

This standard covers the following offences:

riot - section 1 of the Act;
violent disorder - section 2 of the Act;
affray - section 3 of the Act;
using threatening, abusive or insulting words or behaviour causing fear of or provoking violence - section 4 of the Act;
using threatening, abusive or insulting words or behaviour, or disorderly behaviour intending to and causing harassment, alarm or distress - section 4A of the Act;
using threatening, abusive or insulting words or behaviour, or disorderly behaviour likely to cause harassment, alarm or distress - section 5 of the Act;
drunk and disorderly behaviour (section 91 Criminal Justice Act 1967);
bind overs

Offences involving public disorder are often a precursor to, or part of, the commission of other offences. An offence under the Act may, for example, also lead to or involve an assault, unlawful possession of a weapon or the causing of criminal damage. Refer toAdditional Charges and Charge Selection elsewhere in this chapter for guidance on the selection of the appropriate number and type of charges in such cases.

General Charging practice

You should always have in mind the following general principles when selecting the appropriate charge(s):
1. the charge(s) should accurately reflect the extent of the accused's alleged involvement and responsibility thereby allowing the courts the discretion to sentence appropriately;
2. the choice of charges should ensure the clear and simple presentation of the case particularly when there is more than one accused;
3. there should be no overloading of charges by selecting more charges than are necessary just to encourage the accused to plead guilty to a few;
4. there should be no overcharging by selecting a charge which is not supported by the evidence in order to encourage a plea of guilty to a lesser allegation.
General Principle: Public Order Offences
The purpose of public order law is to ensure that individual rights to freedom of speech and freedom of assembly are balanced against the rights of others to go about their daily lives unhindered.

Riot
(Archbold 29-4 to 29-9)
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.
For a definition of unlawful violence - section 8 of the Act. (Archbold 29-38)
For the requisite standard of mens rea - section 6 of the Act. (Archbold 29-35)
Providing the above conditions are met each of the persons using unlawful violence for a common purpose is guilty of riot. Others can commit this offence by aiding, abetting, counselling or procuring the use of violence, e.g. encouraging, planning, directing or coordinating the activities of those involved in violent action. These should be charged as joint principals.
For additional assistance on drafting the indictment see (Tyler and Others 96 Cr App R. 332 (CA)).
Charges under section 1 should only be used for the most serious cases usually linked to planned or spontaneous serious outbreaks of sustained violence
Conduct which falls within the scope of this offence might have the one or more of the following characteristics:
the normal forces of law and order have broken down
due to the intensity of the attacks on police and other civilian authorities normal access by emergency services is impeded by mob activity
due to the scale and ferocity of the disorder, severe disruption and fear is caused to members of the public
the violence carries with it the potential for a significant impact upon a significant number of non-participants for a significant length of time
organised or spontaneous large scale acts of violence on people and/or property
An offence under section 1 is triable on indictment only. The maximum penalty on conviction is ten years' imprisonment and/or a fine of unlimited amount.
A prosecution for riot or incitement to riot may be commenced only by, or with the consent of, the Director of Public Prosecutions (refer to Consents to Prosecute, elsewhere in this guidance).
The decision to charge riot should be discussed with the Chief Crown Prosecutor (ACCP in London). CCPs (ACCPs in London) should notify the Director where any charge of riot is being pursued.

Violent Disorder
(Archbold 29-10 to 29-16)
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 - 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 & 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

(Archbold 29-18 to 29-24)
An offence under section 3 is triable either way. The maximum penalty on conviction on indictment is three 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 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
to fear for his personal safety.
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 - section 8 of the Act (Archbold 29-38).

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. 572CA), 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).
The level of conduct appropriate for charges under Section 3 will often fall comfortably within the ambit of that anticipated within S4 POA. Affray should be considered in circumstances of serious and indiscriminate violence. Examples of the type of conduct appropriate for a Section 3 offence include:

A fight between two or more people in a place where members of the general public are present (for example in a public house, discotheque, restaurant or street) with a level of violence such as would put them in substantial fear (as opposed to passing concern) for their safety (even though the fighting is not directed towards them);

Indiscriminate throwing of objects directed towards a group of people in circumstances where serious injury is or is likely to be caused;

The wielding of a weapon of a type or in a manner likely to cause people substantial fear for their safety or a person armed with a weapon who, when approached by police officers, brandishes the weapon and threatens to use it against them;

Incidents within a dwelling should not be charged as affray merely because a lesser public order charge is not available. Offences of assault are likely to be more appropriate. Affray should be considered in circumstances analogous to those listed above where serious violence is used or threatened, and with due regard to the principles set out in R v Sanchez.

The accused must have intended to use or threaten violence; or have been aware that his conduct may be violent or may threaten violence.

The crown court is likely to be the more appropriate venue if a charge of affray is preferred.
Offences contrary to sections 5, 4A, 4, of the Act and section 91 Criminal Justice Act 1967
There is an overlap in the conduct required to commit any one of these offences.
To use this section of the Charging Guidance you should:
consider which category the behaviour complained of falls into; and
refer to the relevant paragraphs to identify which offence may be appropriate to charge and prosecute.


Elements required to prove offences contrary to s.91, CJA 1967, s.5, s.4a and s.4(1)(a) of the Public Order Act - disorderly behaviour
Drunk and Disorderly contrary to Section 91 CJA 1967: disorderly behaviour
Section 5 of the Act:
threatening, abusive or insulting words or behaviour or disorderly behaviour
Section 4A of the Act:
threatening, abusive or insulting words or behaviour or disorderly behaviour
Section 4(1)(a):
threatening, abusive or insulting words or behaviour towards another person

Drunk and Disorderly contrary to Section 91 CJA 1967: in any public place
Section 5 of the Act:

in a public or private place (but not when confined to a dwelling house - see footnote)
Section 4A of the Act:

in a public or private place (but not when confined to a dwelling house - see footnote)
Section 4(1)(a):

in a public or private place (but not when confined to a dwelling house - see footnote)
Drunk and Disorderly contrary to Section 91 CJA 1967: while drunk
Section 5 of the Act:

With intention or awareness that behaviour may be disorderly; or with intention or awareness that such behaviour may be threatening, abusive or insulting
within the hearing or sight of a person likely to be caused harassment, alarm or distress
Section 4A of the Act:

with intent to cause and thereby causing harassment, alarm or distress
Section 4(1)(a):

Either: with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person
or: with intent 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
Note: Sections 4, 4A and 5 may take place in a public or private place. No offence under these sections is committed, however, if such conduct takes place inside a dwelling and the person to whom it is directed is inside that or another dwelling. The definition of a dwelling is set out in section 8 of the Act and discussed at (Archbold 29-38).

Section 4

(Archbold 29-25 to 29-33)
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 (Archbold 29-38). 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. 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.

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..
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 being six months imprisonment or a fine not exceeding the statutory maximum, or both.


Section 4A

(Archbold 29-34 to 29-34a)
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.
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 (Archbold 29-38). 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 of the Crime and Disorder Act 1998, section 4A is capable of being racially aggravated - refer to Racially Aggravated Offences.
Racially aggravated section 4A 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 being six months imprisonment or a fine not exceeding the statutory maximum, or both.
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. Prosecutors should refer to the CPS Guidance on Prosecuting Cases of Racist or Religious Crime, elsewhere in the Legal Guidance.


Section 5

(Stones 8-27724)
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.

Section 5 should be used in cases which amount to less serious incidents of anti-social behaviour. Where violence has been used, it is not normally appropriate to charge an offence under section 5 unless the physical behaviour amounts merely to pushing or undirected lashing out of a type likely to cause no more than a glancing blow, minor bruising or grazing. Such conduct may also be classified as disorderly and suitable for a charge under section 91 CJA 1967 in appropriate circumstances.

There must be a person within the sight or hearing of the suspect who is likely to be caused harassment, alarm or distress by the conduct in question. A police officer may be such a person, but remember that this is a question of fact to be decided in each case by the magistrates. In determining this, the magistrates may take into account the familiarity which police officers have with the words and conduct typically seen in incidents of disorderly conduct. (DPP v Orum [1988] Crim LR 848)

Although the existence of a person who is caused harassment alarm and distress must be proved, there is no requirement that they actually give evidence. In appropriate cases, the offence may be proved on a police officer's evidence alone.

Police officers are aware of the difficult balance to be struck in dealing with those whose behaviour may be perceived by some as exuberant high spirits but by others as disorderly. In such cases informal methods of disposal may be appropriate and effective; but if this approach fails and the disorderly conduct continues then criminal proceedings may be necessary.
In deciding whether a charge under section 5 is appropriate, the nature of the conduct must be considered in light of the penalty that the suspect is likely to receive on conviction.
Where there is reliable evidence that the accused was drunk in a public place at the time of the alleged offence to the extent that the accused had lost the power of self control, a charge of drunk and disorderly behaviour should be preferred where otherwise a section 5 charge would be appropriate.

By virtue of section 31(1)(c)of the Crime and Disorder Act 1998 (as amended by the Anti-Terrorism, Crime and Security Act 2001), section 5 is capable of being charged as a discrete racially or religiously aggravated offence, refer to CPS Guidance on Prosecuting Cases of Racist and Religious Crime, elsewhere in the Legal Guidance.
Racially/religiously aggravated section 5 is a summary only offence, with the maximum penalty being a fine not exceeding level 4 on the standard scale.
By virtue of Schedule 7 of the Serious Organised Crime and Police Act 2005, section 5 is capable of being an arrestable offence if the criteria in section 24A PACE (as amended by section 110 'SOCAP' Act 2005) is satisfied.

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