Threatening Behaviour: Sections 4 and 4A of the Public Order Act 1986

Two of the more common offences dealt with by the Magistrates' Court are those under sections 4 and 4A of the Public Order Act 1986.

In today's article I shall give a whistle-stop tour of each of these offences - causing fear or provocation of violence, an offence under section 4; and causing intentional harassment, alarm or distress, an offence under section 4A.

For convenience, I shall address each of these offences separately.

Section 4: Causing fear or provocation of violence:

As mentioned, causing fear or provocation of violence is an offence under section 4 of the Act.

Subsection (1) states that a person is guilty of an offence if they:

(a) use towards another person threatening, abusive or insulting words or behaviour, or

(b) distribute or display to another person any writing, sign or other visible representation which is threatening, abusive or insulting,

with 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.

Subsection (2) states that an offence under subsection (1) may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is distributed or displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.

Subsection (4) states that the maximum penalty on summary conviction for an offence under subsection (1) is 6 months' custody and/or an unlimited fine.

The words "threatening, abusive or insulting" are to be interpreted by their ordinary meaning.

This offence can still be charged when actual violence has been used, instead of merely the threat of violence (CPS v Shabbir [2009] EWCA Crim 2754).

The threat of violence needs to be made directly towards another person (Atkin v DPP [1989] Crim LR 581). It cannot be relayed via a third party (e.g. "Mr X told me he's going to smash your teeth out").

Similarly, a threat can only be conveyed visibly if it is seen directly by the subject. A written threat contained within a sealed envelope was deemed to fall outside the scope of the legislation (Chappell v DPP [1988] 89 Cr App 82).

On its website, the CPS lists a number of scenarios that might fall within the scope of subsection (1), namely:

• 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.

Section 4A: Causing intentional harassment, alarm or distress:

As previously mentioned, causing intentional harassment, alarm or distress is an offence under section 4A of the Act.

Subsection (1) states that a person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, they:

(a) use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

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

thereby causing that or another person harassment, alarm or distress.

Subsection (2) states that an offence under subsection (1) may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.

Subsection (3) states that it is a defence for the accused to prove:

(a) that they were 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

(b) that their conduct was reasonable.

Subsection (5) states that the maximum penalty on summary conviction for an offence under subsection (1) is 6 months' custody and/or an unlimited fine.

Again, the words "threatening, abusive or insulting" are interpreted by their ordinary meaning. As discussed in our earlier article about section 5 of the Public Order Act 1986, whether or not behaviour is disorderly is entirely a matter for the court (Chambers and Edwards v DPP [1995] Crim LR 896).

In its guidance, the CPS notes that an offence under section 4A carries a higher maximum penalty than one under section 5, as it requires the intention to cause harassment, alarm or distress to a specific victim. Unlike section 5, for an offence under section 4A it must also be proved that a specific victim suffered harassment, alarm or distress as a result of the defendant's conduct.

There is a degree of crossover between what could be considered section 4A and section 5 offences.

The CPS has indicated that the following factors tend to indicate the appropriateness of a charge under section 4A:

• Sustained abuse;
• Targeting a lone victim;
• Significant effect on the victim;

whereas these factors tend to indicate the appropriateness of a charge under section 5:

• A single remark;
• The victim is not alone or isolated;
• The effect on the victim is minor or transitory.

Prosecutors are reminded that sustained abuse, taking place against a specific victim on more than one occasion, may be more appropriately charged as an offence under sections 2 or 4 of the Protection from Harassment Act 1997.