Civil Liberties Lecture 8 Public Order Law II

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Civil Liberties Public Order Law II

Anna Grear

University of the West of England

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Introduction

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

Critical Themes

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Public Order Offences

Introductory matters Riot Violent Disorder Affray Fear or Provocation of Violence Harassment, Alarm or Distress Conclusion on the offences

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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.

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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

12 or more people

Using or threatening ‘unlawful violence’

Acting for a common purpose

Would cause a ‘person of reasonable firmness present at the scene to fear for his personal safety’ (no such person needs to be present: s 1(4)).

Behaviour in the context will be an offence

Guilty if a person actually uses violence +he intends to use violence or is aware that his conduct may be violent’ (s 6(1)).

(Can be committed in public or in private)

Requires consent of DPP for prosecution

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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

At least 3 people (taken together) using or threatening ‘unlawful violence’

No need for a common purpose

Would cause a ‘person of reasonable firmness present at the scene to fear for his personal safety’ (no such person needs to be present).


Mental element: intention or awareness that the behaviour is or may be violent, or may threaten violence (s 6(2)).

(Can be committed in public or in private: s 2(4))

Does not require consent of DPP for prosecution.

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Public Order Offences - Affray

S 3 of the Act. The section defines a

Context

Individual using or threatening ‘unlawful violence’ towards another person - not property.

Would cause a ‘person of reasonable firmness present at the scene to fear for his personal safety’ (no such person needs to be present (s 2(4)).


Guilty if uses or threatens violence towards another person.

Mental element = intends to use or threaten violence or is aware that his conduct may be violent or threaten violence. (s 6(2)).

(Can be committed in public or in private: s 3(5))

A constable may arrest without warrant anyone he reasonably suspects is committing affray (s 3(6))

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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

provoked.

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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 been disregarded’ (Lord Reid)

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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.

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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.

•threatening, abusive or insulting words or disorderly behaviour

•(or displays any writing, sign, or 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).

Can be committed in public or private - but not in a dwelling (s 5(2)).

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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

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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.

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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:

Percy v DPP

Norwood v DPP

Hammond v DPP

‘The courts -- at the lower levels, anyway -- still appear to be "exhibit[ing] a preference for public peacefulness and the avoidance of incitement over freedom of expression" when considering whether the expression of some individual dissenter constitutes a breach of s.5 of the Act.’

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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.

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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).

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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.

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Some parting reflections on critical themes

‘Protest’ and ‘Order’ Protest Disorder and Riot Peace, Order and ‘Public Order’

‘Balance’

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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.

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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 v individual responsibility - racialisation of ‘riot and disorder’.

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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.

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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)).

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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?

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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’?

Civil Liberties Lecture 8 Public Order Law II

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Transcript of Civil Liberties Lecture 8 Public Order Law II