Public order offences
From CrimeLine from Andrew Keogh
- CPS Public Order Offences
- Riot
- Violent Disorder
- Affray
- Self Defence
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”). Further offences are found in Part Ill of the Act which deals with public disorder designed to stir up racial hatred. Other public order offences are set out in the Football Offences Act 1991, and reference is also made to the offence of drunk and disorderly behaviour.
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.
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.
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Alternative verdicts
The Act recognises that there may be some overlap between some public disorder offences by providing for the return of an alternative verdict where the offences of affray or violent disorder have been tried on indictment. In these circumstances, the jury may, in finding, the defendant not guilty as charged, find him guilty of an offence under section 4. It is important to emphasise, however, that the offence which is most appropriate to the circumstances of the case should always be charged. An offence of affray or violent disorder should never be charged with a view to obtaining a guilty verdict under section 4.
The operation of section 6(3) Criminal Law Act 1967 is not affected by the Act. Hence, a jury may on an indictment for riot, return an alternative verdict of guilty of violent disorder or guilty of affray: R v Fleming (1989) 153 JP 517. Section 6(3) may also be used where a defendant faced with an indictment charging either violent disorder or affray wishes to Plead not guilty as charged, but guilty to an offence contrary to section 4: R v O’Brian (1992) 156 JP 9 — 15.
Similar provisions do not exist for the return of alternative verdicts in the Magistrates’ courts.
Additional Charges
It is a common feature of public order incidents that sufficient evidence exists to charge the accused with offences other than those under the Act, for example, unlawful possession of an offensive weapon, assault and/or criminal damage.
It is difficult to give general guidance in this area, because each course of conduct should be considered in the light of the facts of the particular case. However, the following general factors may help in deciding which combination of offences should be charged where more than one is possible.
- Is the offence basically one of public disorder in which there has been some minor assault; or vice versa? If the former, concentrate on the public disorder aspect.
- Where there are aggravating features to an assault, such as the use of a weapon, it is likely that an assault charge should be preferred.
- Where there is an allied assault or act of criminal damage, is it one in which compensation is an issue? If so, an assault charge or criminal damage charge may also be appropriate. But remember compensation may be payable to a victim in respect of offences of affray and violent disorder. This will be so, if the loss, damage, or personal injury arose from the group activity in which the offender took part, and there is sufficient connection between his participation in the offence and the injury to support the making of a compensation order.
A charge under the Football (Offences) Act 1991 (“F(O)A”) will be more suitable where the following types of conduct have occurred at a designated football match:
- throwing, missiles onto the playing area, or any are adjacent to the playing area to which spectators are not usually admitted: section 2 F(O)A;
- racialist or indecent chanting: section 3, F(O)A;
- going on to the playing area or any area adjacent to the playing area to which spectators are not usually admitted without lawful authority or lawful excuse: section 4 F(O)A.
The choice of charge will ultimately be made on the facts of individual cases Football (Offences) Act 1991 (“F(O)A”) will be more suitable where the following types of conduct have occurred at a designated football match:
- throwing, missiles onto the playing area, or any are adjacent to the playing area to which spectators are not usually admitted: section 2
The choice of charge will ultimately be made on the facts of individual cases
Assaults
If there is sufficient evidence to justify a charge under section 1 of the Public Order Act and an assault contrary to:
- (a) section 18 of the Offences Against the Person Act 1861 (OAPA); or
- (b) section 20 OAPA.
It will usually be appropriate to charge both. It will not normally be appropriate to charge section 47 or common assault contrary to section 39 of the Criminal Justice Act 1988 together with an offence contrary to section 1 of the Act.
If there is sufficient evidence to justify a charge under sections 2 or section 3 of the Public Order Act and an assault contrary to
- Section 18 OAPA; or
- Section 20 OAPA; or
- Section 47 OAPA
It will usually be appropriate to charge both. It will not normally be appropriate to charge common assault sections 2 or section 3 of the Act.
If there is sufficient evidence to justify a charge under section 4, section 4A or section 5 of the Act and an assault contrary to
- Section 18 OAPA; or
- section 20 OAPA; or
- Section 47 OAPA
It will usually be appropriate to charge the assault alone. In cases of section 4 conduct, if other victims have not been assaulted, it will usually be appropriate to charge section 4 in addition to the assault.
Where there is evidence to prove conduct contrary to section 4, section 4A or section 5, together with a common assault (section 39 of the CJA 1988), it will usually be appropriate to proceed on the common assault alone. But if the conduct contrary to section 4, section 4A or section 5 was directed at others who were not victims of common assault, consider charging both.
Section 18 — conduct intended to or likely to stir up racial hatred
Where the evidence supports a charge under section 18 of the Act and there is evidence of an assault, and/or criminal damage, and/or unlawful possession of an offensive weapon, the section 18 offence should always be charge in addition to the other offence(s).
Offensive Weapons
Generally, the more serious the outbreak of public disorder — when the defendant is also in possession of an offensive weapon or bladed weapon — the more likely it will be to add a further charge to reflect that fact.
Where any type of weapon is carried by those involved in public disorder, this is an aggravating factor to be taken into account in the presentation of the case.
The approach to be taken will depend on the following, factors:
- the type of weapon concerned;
- whether the weapon was used or its use threatened;
- how the weapon was used;
- the potential for serious injury;
- the time when the weapon was discovered or produced (i.e. was it produced during the incident or found on arrest).
Where a summary only public order offence is appropriate, but where the defendant is in unlawful possession of an offensive weapon, police officers and prosecutors should consider carefully whether it might be more appropriate to focus on the possession of the offensive weapon (which is an offence triable either way) and recount the circumstances of the disorder in presenting the case to the relevant tribunal. If however, the summary public order offence is itself serious, such as, for example, racially motivated harassment or ‘stalking’, consider charging both offences.
The possession of a bladed weapon in a separate charge when the appropriate public disorder offence is summary only should be considered.
The unlawful possession of an offensive weapon in a separate charge when the appropriate public order offence is triable either way or only triable on indictment should be considered.
Criminal Damage
Acts of criminal damage are frequently committed during, public disorder. Where there is sufficient evidence to support both offences, consider charging both, if however, offences contrary to section 1 or section 2 of the Public Order Act are being charged and the criminal damage is minor, charge the section 1 or section 2 offence alone. If the criminal damage is serious and the public order act offence is minor, then charging, the criminal damage alone should be considered.
Alternative Disposal — Bind Over
Binding over orders and conditional discharges
Both the Crown Court and magistrates’ courts may make an order binding over an individual to keep the peace. An application for a bind over should never be made as a matter of convenience and should not be made in the Crown Court except in exceptional circumstances. A court may be asked to exercise its power to bind over where:
- there has been an outbreak, of bad behaviour which is not sufficiently serious to prefer a charge under the Act but which amounts to a breach of the peace; and
- there is a danger that the conduct complained of will be repeated; and *the accused consents to the proposed course of action.
For conduct to constitute a breach of the peace, the conduct must involve violence or the threat of violence. The violence need not be perpetrated by the defendant, provided that the natural consequence of his conduct, was that others would be provoked to violence (Percy v DPP [1995) Crim LR 714).
It will be appropriate to seek a bind over where conduct falling short of that required for a substantive offence under the Act has been committed. If it is considered that the case is one which should proceed by way of bind over, then a complaint should be laid rather than a charge.
Where a decision has been made to prosecute in accordance with the Code for Crown Prosecutors, the circumstances in which it will be appropriate to dispose of the case by way of a bind over will be rare. There must have been a significant change in circumstances; for example, where a witness refuses to give evidence against the defendant, but there remains sufficient evidence that the defendant was involved in a disturbance.
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