Disorderly Behaviour: Section 5 of the Public Order Act 1986

"Sticks and stones may break my bones, but names will never hurt me" goes the popular nursery rhyme.

In common with most people, I was taught that saying at a very early age and it has stuck with me ever since.

Nowadays I tend not to get called that many names. I'm a very mild-mannered person and not easily flustered. In the rare instances that I do receive any sort of verbal abuse, I just let it glide over my head and don't take it to heart.

I have always subscribed to the belief that if someone resorts to being abusive, then it says a lot more about their character than it does my own.

Not everyone is as fortunate as I am. Some people are subjected to outrageous threats and abuse, which simply can't be ignored and nor should they be. Legislation exists to hold to account anyone meting out such disorderly behaviour.

In today's article we are going to explore the criminal offence of disorderly behaviour.

We give the customary disclaimer that we cannot possibly cover every single angle of the offence, but hope to cover the most pertinent points. As always, we'd invited readers to consult the references mentioned below if they require any further information.

Disorderly behaviour is an offence contrary to section 5(1) of the Public Order Act 1986, which states:

"A person is guilty of an offence if he-

(a) uses threatening or abusive words or behaviour, or disorderly behaviour, or;

(b) displays any writing, sign or other visible representation which is threatening or abusive

within the hearing or sight of a person likely to be causes harassment, alarm or distress thereby."

Section 5(2) of the Act states that the offence can be committed in either a public or private place, except that no offence is committed when the behaviour (either verbal or visual) is displayed by a person in a private dwelling to another person inside that or another private dwelling.

Section 5(3) sets out the statutory defences for disorderly behaviour. There are three possible defences available to a person charged with the offence:

(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or;

(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or;

(c) that his conduct was reasonable.

Section 5(6) of the Act sets the maximum penalty on summary conviction as a fine at level 3 (currently £1,000).

Section 6(4) of the Act sets out the mens rea of disorderly behaviour in the following terms:

"A person is guilty of an offence under section 5 only if he intends his words or behaviour or the writing, sign or other visible representation, to be threatening or abusive, or is aware that it may be threatening or abusive or (as the case may be) he intends his behaviour to be or may be aware that it may be disorderly."

Considering section 5(1) of the Act in closer detail, it can be seen that there are two main elements of the offence:

that the defendant used threatening or abusive words or behaviour, or disorderly behaviour; or that they displayed any writing, sign or visible representation which is threatening or abusive;

that there was a person within hearing or sight who was likely to be caused harassment, alarm or distress as a result.

As you will undoubtedly have noticed, these broad brushstrokes give rise to wide and varied interpretation of what actually constitutes an offence. The CPS provides some useful guidance on possible acts of disorderly behaviour, but it is by no means exhaustive.

Whether or not behaviour is disorderly is entirely a matter for the court (Chambers and Edwards v DPP [1995] Crim LR 896).

Disorderly behaviour does not require any element of violence, actual or threatened. It includes conduct that is not necessarily threatening or abusive. It is not necessary to prove any feeling of insecurity, in an apprehensive sense, on the part of a member of the public.

It has been established (Holloway v DPP [2004] EWHC 2621 (Admin)) that an offence is only committed if a person is actually within sight of the alleged disorderly behaviour, not merely that they might have been.

It is not, however, necessary to prove that the person did actually see the disorderly behaviour or experience harassment, alarm or distress as a result. It is sufficient that they were likely to be caused harassment, alarm or distress.

Case law (DPP v Orum [1988] Crim LR 848) has established that a police officer can be likely to be caused harassment, alarm or distress for the purposes of an offence. Whether the police officer was likely to be caused harassment, alarm or distress is a matter for the court to determine on the facts before it. We have previously written about one such case.

The High Court has ruled (Abdul v DPP [2011] EWHC 247 (Admin)) that an individual's right to freedom of expression under article 10 of the European Convention on Human Rights does not preclude them from committing an offence under section 5(1) of the Act. This means protestors voicing their opinions can still be convicted of disorderly behaviour.

In common with every other offence, prosecutions for disorderly behaviour should only occur where both the evidential and public interests are met, but you do have to wonder about the merits of some cases coming before the court (see our earlier article for one such case).

To be blunt, some of these cases are akin to schoolyard squabbles that would be better resolved out of court.