Public Order Law Lecture 3
Alan Davenport
Track/Slide 1
This is the third of three lectures on the area of public order law. In the first lecture I discussed the concept of breach of the peace at common law. In the second lecture I dealt with statutory powers available to the police to control processions and assemblies. What I'm going to concentrate on in this third lecture are the offences which have been enacted by the Public Order Act 1986. Now the specific offences I'm looking at are in sections 1 – 5 of the Act so it would be helpful if you had a copy of those sections in front of you as I'm going through them (online PDF version of the Act).
Ok let's start with the first offence, riots. As the defences go down from 1 to 5 they descend in seriousness. Riot, now most of you will have heard in common parlance the phrase that somebody has had the Riot Act read to them or somebody is reading the Riot Act to somebody else. Now this has been take to mean now as to give somebody a real telling off, a real berating. In fact it has historical basis in the law. In the 18th and 19th centuries if there were specific public disorder problems, the magistrate would be called to the scene. He would stand up and he would read the Riot Act to the assembled crowd. Now what that meant was once the Riot Act had been read anybody in the area had to disperse within an hour or actually put themselves at risk of being shot by the army or later on by the police. Now that's where the historical basis comes from. Why was it read out? Quite simply because unlike today there wasn't mass state education and very few people could in fact read it for themselves. So it was read out and people were given an hour to disperse.
Now what we've now got is the 1986 Act and that abolished all the old common law offences such as riot, rout, unlawful assembly and affray and it set out new statutory definitions for public order offences so it's this Act to which you turn now when you're faced with a public order problem. Let's look at that definition in section 1 of that Act of riot. "Where twelve 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." Let's break this definition down into its constituent parts. Firstly there's a factual number requirement. There have to be at least 12 people. Secondly they have to be present together. Thirdly they have to use or threaten unlawful violence so it's not all of them have to be using it. Now the violence has to be threatened for a common purpose. Now for the common purpose we do have some case law. That's R v Jefferson [1994] 1 All ER 127. In R v Jefferson there was disorder in a pub after an England match and a subsequent win by the England football team. Disorder degenerated into what was deemed to be a riot and the court held that there was a common purpose here which was to celebrate the end of the football match and possibly use violence. So we've got a fairly elastic definition of a common purpose but one thing we haven't had settled yet is this. If we have 6 people wearing blue shirts and 6 people wearing red having a fight, do we have 12 with the common purpose of having a fight or 6 whose purpose is to hit somebody wearing blue and 6 whose purpose is to hit somebody wearing red? That's something we don't know yet and we've got to be careful about. So if you have 12 or more people using or threatening unlawful violence together and it's for a common purpose, what you then have to do is bring in a mythical person, the person of reasonable firmness who's quite clearly the reasonable man under another guise and judge that what's going on or what went on at a particular time against whether it would cause our mythical person to feel or fear there was going to be violence towards him. Now note in section 1.4this person doesn't even have to be present. So we're actually if you like taking an artificial stance that you look at something that has in fact happened and then measure it against an artificial perfect reasonable standard and that decides whether or not there's a riot. So you've got to have all these elements and then you've got to place them against this test. That's how you decide if there's a riot. Two more things to notice about a riot, 1) it can be committed in private as well as in public and 2) there is an element of mens rea in that all people prosecuted for riot must have intended or at least be aware their conduct might be violent.
Now riot's a very serious offence punishable by a maximum term of 10 year's imprisonment. It's even more serious though when you note section 7 of the Public Order Act which provides that you can't prosecute for riot or an inchoate version of it such as incitement without the consent of the D.P.P. Now the fact that you have to have that consent indicates just how serious the offence is. So that's riot then, a very serious public order offence, not very often charged but available for a situation where there's mass group violence. So that's the most serious offence, section 1. What I'll deal with in the next slide is the offence of violent disorder, which is contained in section 2 of the Public Order Act 1986.
Track/Slide 2
In the last slide I dealt with the offence of riots. What I'm going to deal with in this slide is the offence of violent disorder which is contained in section 2 of the Public Order 1986. Now again I'm going to begin by reading out the offence and then I'll break it down into its constituent parts and talk about some of the case law on it. Here's the offence section 2.1 "Where three 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. So again we've got some constituent elements. As I'm going through them I'll also point out where they are different to riot. Well the first and most obvious difference is the minimum number. In violent disorder you only need three or more people. Contrast that with riot where it was 12 or more. Secondly they have to be present together so that's a common element and again the offence can be using or threatening unlawful violence. What you don't have to have however in violent disorder is a requirement of a common purpose. So it's the use or threat of violence that is key, not any requirement that this be used or threatened for a common purpose. Again we do have to judge what's gone on against this standard of our mythical person of reasonable firmness and again under section 2.3 this person doesn't actually need to be present. What you should note is under section 2.2 it's immaterial whether or not these three people use or threaten violence simultaneously. Now what's this used for?Largely things like pub fights or where a public procession may degenerate into some sort of brawl. It's easier for the police to use these sort of offences than it is to try and prove A hit B, B hit C, which you would have to prove to make up charges such as assault, GBH, ABH etc. So where you've got a group situation and group violence, violent disorder is a very handy offence for the police and it's a very clearly defined offence.
Now this three or more minimum number has caused problems and we do have some case law, for example Mahroof andR v. McGuigan and Cameron. What I'm going to do here is distil that case law together and give you the rules that actually apply. If there are only three people involved in an incident then they're either all guilty of violent disorder or they're all not guilty of it. Now that doesn't mean they're not guilty of anything. They may well be not guilty of violent disorder but guilty of another offence but if you've only got three then they're either all guilty or all not guilty. You can charge fewer than three with violent disorder if you can show there were other people involved in the incident who the police have not been able to trace. So that's one thing you can do. You can convict again less than three people as long as you can show there were more people involved but what you always have to show is at least three people were using or threatening unlawful violence. Clearly if you've arrested two and said the third one got away you're going get into problems in court because the jury might think "Where is this third person? Was he or she offering violence? We don't know. We've no evidence from them". So there may be a problem there. But again it's a very serious offence. We're talking 5 years imprisonment as a possible maximum sentence. Again there's an element of mens rea that you must know or be aware that your conduct is violent but the key differences are the numbers and the lack of a requirement of a common purpose. A further difference as well is that under section 2 using or threatening makes you guilty of the crime. If you remember section 1, the people who were guilty were actually the people who used the violence. So that's violent disorder. Again if you've got a small group situation of violence, the police can go in and arrest the people for that offence. So if it's a group violence offence and as I say it is easier to charge than the likes of assault sometimes.
Track/Slide 3
The third offence I'm going to look at under the Public Order Act, having already considered riot and violent disorder, is the offence of affray. Now this is defined in section 3 of the Act. Again I'll take you through the Act and then I will distil this into some constituent elements and have a look at some cases because there's rather a lot of cases on this area. OK, definition – section 3 of the Public Order Act 1986. "A person is guilty of affray if he uses or threatens 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. So let's have a look at the constituent elements. One, there only has to be one person. Again the key thing this person has to do is use or threaten unlawful violence. What's different though between riot, violent disorder and affray is this. In riot or violent disorder using or threatening unlawful violence was sufficient. What you have to show in affray is that the use or threat of unlawful violence is directed towards another person and that can't be a face in the crowd. It has to be directed towards a specific person. So that's an extra element. And once again when you've decided whether there's a use or threat of unlawful violence, you've decided there's another person at whom it's directed, we then have to look at what will be the effect of the action on our mythical person of reasonable firmness. So again we're judging this by an objective if somewhat mythical standard. And this was the issue in R. v Sanchez[1996] Crim LR 572. This concerned a domestic incident, as the police would call it, between a couple. Now the argument in Sanchez was this. Yes there had been a use or threat of violence and yes it had been towards another person, i.e. the partner in the relationship, but a person of reasonable firmness would not have feared for their safety because it was quite clear that in fact the dispute was contained between two people and anybody on the scene, this person of reasonable firmness, wouldn't have feared because they wouldn't have been involved. Now what the court said was "That's a plausible argument and we must look at how this person of reasonable firmness would in fact have reacted". So this is a test that you have to be very careful of. So do be aware you've got to use the threat of violence towardsanother and the person of reasonable firmness is again crucial.
A couple of things to note about affray. Section 3.3 – you cannot threaten violence by words alone for an affray conviction. Now as we'll see in a later, words and a gesture in the case I'm going to talk about later, Davison, in fact the waving of a knife, were held to be sufficient but you can't just do it by words. If somebody's just being threatening by words then you may well have to go to sections 4 or 5 of this Act to find an offence of which they are guilty. The second thing to note about affray – again it can be in private or in public. Thirdly, it's a maximum sentence of three years. So it's not quite as serious as the others but it is the sort of offence you can charge where there is only one person. So if you combine the three serious offences together, you can see that there is a great deal of public disorder which can be controlled by these offences and there's a great deal of weapons within the police armour if you like to arrest people who are causing public disorder. So that's affray.
Now in the next slide I'm going to deal with some of the affray cases, bearing in mind this definition because there are quite a lot of cases on it. So bear in mind – use or threat of violence towards another person and then we're looking at well how is that person of reasonable firmness going to be affected. So on the next slide I'll look at the cases then.
Track/Slide 4
OK let's have a look at some cases then on affray. Now I've said in the previous slide that affray can't be committed by words alone. This was exemplified in the case ofR v. Davison [1992] Crim LR 31. So what happened? The police were called to a potential domestic incident at a flat. Now according to the Criminal Law Review report, as they walked in they noticed, and I think it's something you might notice, that Mr. Davison was actually carrying an 8 inch kitchen knife. Now as I say, it's one of those times when you look at a report and wonder whether they've quite used the right word. Anyway Mr. Davison proceeded to walk towards the police, saying he was going to "do them" and at the same time waving the knife in front of their faces. When he was prosecuted for affray he argued that his words alone, i.e. he was "going to do them" couldn't constitute the offence and he wasn't in fact guilty. What the court ruled and I think I can see where they are coming from – this makes a lot of sense – is the charge wasn't made out just by his words. There was also a threatening element in the way he waved the kitchen knife around. So because of the combination of the words and the action he could be prosecuted and in fact this is exactly the sort of thing that affray is intended for. If you're standing there waving a kitchen knife in somebody's face threatening to do them I think most people would argue that you are using or threatening unlawful violence towards another and that your conduct would cause a person of reasonable firmness to be afraid. Now even if the trained police officer who had confronted Mr. Davison wasn't afraid, that isn't the actual issue. The issue is whether the reasonable person, i.e. me or you, would have been afraid. I certainly would have been. I think most people would. So that's an example of the offence being made out. For another example have a look at R. v Robinson. What was said in R. v Dixon though was one of those cases where you realized that affray stretched a bit wider. In Dixon the threat didn't come from Dixon. The threat came from his dog. Dixon had threatened that he was going to let his dog on somebody if they didn't do what he said. Dixon was prosecuted. So the question is what's the affray. The answer here was the use or threat of violence and violence, the threat of violence, could come from a threat to set a dog on somebody. So the violence can be carried out, if you like, through an agent, borrowing a term from another area of law, and you're still guilty of this particular criminal offence. These cases give you some idea then of what the offence entails.
Now the next case, and when I give you the facts you may think is rather strange, but what I want you to think about here is the requirement under section 3 that your use or threat of unlawful violence has to be towards another defined person. The case is I and Ors v DPP [2001] UKHL10. Now it's I and Others because the people involved were in fact minors. This is what happened. There had been some trouble between rival gangs in certain areas. Now on the night in question a number of members of one gang had congregated in the wells of a block of flats and some of them were carrying petrol bombs. The police were called and these people ran away and got rid of their petrol bombs. I hasten to add here, they didn't light them. They didn't get rid of them by exploding them if you like. They simply got rid of them. And the youths who were carrying these petrol bombs were prosecuted for affray and convicted but they appealed all the way up to the House of Lords, arguing that although they were carrying petrol bombs, they couldn't have been said to be threatening one particular person. Now this I have lectured before saying they were carrying them in a non-threatening manner which is not quite exactly what the court said. But what the House of Lords ruledwas because there was no defined victim, they weren't waving the petrol bomb in somebody's face, they couldn't be convicted of affray. Clearly there are other offences they could be convicted of but because they couldn't have been shown to use or threaten violence towards a particular person, they were, for want of a better phrase, trying to look hard and there was no offence made out. So the lesson here clearly is carry your petrol bomb in a non-offensive manner. I know that sound strange and that's a fairly flip remark but the point that the court makes is well made, that you must actually have this defined person. Generally walking around, swaggering, trying to look hard is not an affray. Had they waived their petrol at any particular person or threatened to light it in front of a person, the offence would have been made out.