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Public Disorder - August 2011
Guidance for Prosecutors on Charging Public Order and other offences

Introduction

This document provides guidance about charging in respect of conduct arising from the various episodes of public disorder which have taken place during August 2011. The aims of the guidance are:

  • to identify key relevant legal and policy issues;
  • signpost existing guidance and other information; and
  • to help achieve a consistent prosecution across England and Wales.

This guidance should be read in conjunction with other relevant Legal Guidance chapters, in particular that entitled Public Order Offences incorporating the Charging Standard.

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Public Order Offences

Riot

Riot contrary to section 1 of the Public Order Act 1986 should be reserved for the most serious cases, particularly those involving very serious injury to people or substantial damage to property (particularly where fire is involved). The main obstacle to prosecuting Riot is the need for the prosecution to prove that 12 or more persons used or threatened violence for a common purpose. It is not necessary however for twelve or more to be prosecuted.

When considering charges in relation to events which have taken place across the country in August 2011, each case of course needs to be carefully considered on its own facts and on its own merits. However, although Riot is an offence that should generally only be prosecuted in the most exceptional circumstances, with Violent Disorder often being a charge which suitably reflects the seriousness of even large-scale incidents, nevertheless the extreme nature and effect of the outbreaks of violence and lawlessness that have characterised the August 2011 events are such that the offence of Riot merits serious consideration.

As stated in the Public Order Charging Standard:

"Conduct which falls within the scope of this offence might have the one or more of the following characteristics:

  • the normal forces of law and order have broken down
  • due to the intensity of the attacks on police and other civilian authorities normal access by emergency services is impeded by mob activity
  • due to the scale and ferocity of the disorder, severe disruption and fear is caused to members of the public
  • the violence carries with it the potential for a significant impact upon a significant number of non-participants for a significant length of time
  • organised or spontaneous large scale acts of violence on people and/or property."

Whether or not a common purpose can be established will very much depend on the facts and circumstances of any given case. Such purpose may not be present where, for example, there are seemingly spontaneous outbreaks of violence (even of a large-scale nature) with different motivations coming into play amongst different individuals. Where however, there is evidence of pre-planning and/or a concerted effort by a large group to collectively cause violence, damage, fear and mayhem, there may well be sufficient evidence to make out this element of the offence of Riot.

Those involved in encouraging, planning, directing or coordinating others carrying out the violence can commit the offence by aiding, abetting, counselling or procuring, and should be charged as joint principals.

See below for levels of decision-making in cases involving the offence of Riot.

The consent of the Director of Public Prosecutions (DPP) is required for the institution of a prosecution for an offence of riot or incitement to riot.

In deciding the appropriate level of charge prosecutors should have regard to whether all of the necessary elements of the offence as outlined above can be proved. If they cannot, prosecutors may consider if any of the following charges are more appropriate.

Violent Disorder

Violent Disorder contrary to section 2 of the Public Order Act 1986 is likely to be the suitable offence for incidents of group violence which fall short of the offence of Riot.

Although planning may be an important element in some cases of Violent Disorder, the offence is also appropriate in circumstances where incidents flare up in a seemingly spontaneous manner.

The conduct in question may be directed against a person/persons or property.

Although the offence calls for the involvement of at least three persons, it is not necessary for thee or more to be charged.

It is highly unlikely that any offences of Violent Disorder will be suitable for summary trial.

Affray

Violent conduct towards property alone is not sufficient for the purposes of an offence of Affray contrary to section 3 of the Public Order Act.

Given the collective impact of the conduct of numerous large groups of people during the disturbances of August 2011, careful consideration should be given before preferring or accepting pleas to charges of Affray.

It is important that the full context of the offending involved is reflected in any charging decisions, and care should be taken to ensure that individuals' roles are not unduly minimised or detached from the wider context of fear and lawlessness.

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Other Potential Relevant Offences

Burglary

Offenders who take part in public disorder which involves breaking into property intending to cause criminal damage or steal should be charged with burglary in addition to any public order offence.

In the case of an offender who cannot be shown to have taken part in the disorder, yet is seen to enter property so as to steal (even if this only involves, for example, leaning through a broken shop window in order to remove items), he/she should be charged with burglary rather than theft, to reflect the unwarranted invasion of another's property and the serious context of the offence.

Where a group of people enter a shop or other premises and steal the contents, they should, regardless of whether they are intentionally acting in concert, be charged 'together with others' with burglary and theft of the whole contents.

Given the wider context and the likely sentence, offences of burglary involving the stealing of property from shops or stores, even of a seemingly opportunistic nature, are unlikely to be regarded as suitable for summary trial.

Going equipped to steal

Section 25 of the Theft Act 1968 makes it an offence to:

  • knowingly possess an article
  • for use in the course of or in connection with theft/ burglary.

The possession of the article must occur before the commission of the offence, see R v Ellames (1974) 60 Cr.App.R. 7.

It is essential to prove that:

  • the defendant had a knowledge of the existence of the article; and
  • that the article was 'to hand and ready for use'.

Prosecutors should consider the evidence as a whole in order to determine whether or not there is sufficient evidence that the item is possessed for use or in connection with theft. Possession of an item alone, such as an empty rucksack or a pair of gloves, may be insufficient to found a charge of going equipped. However, the surrounding circumstances in which the defendant was found - evidence of the activities of associates, or messages sent to others signalling a certain intent - may provide sufficient circumstantial evidence to infer that the item was for use in the course of or in connection with theft or burglary.

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Criminal Damage and Arson (Simple and Aggravated)

Where there is sufficient evidence to support a public order offence and criminal damage/arson prosecutors should consider charging both, unless one is significantly more serious than the other in which case only the more serious offence should be charged.

In the context of those who are shown to have set fire to shops and other buildings in urban areas, it is likely that the offence of arson being reckless as to whether life is endangered will be the appropriate charge. However, careful consideration should be given to all of the surrounding circumstances, including evidence of words said or knowledge of the presence of persons inside shops or buildings, before ruling out the possibility of a charge of arson with intent to endanger life.

Where the aggravated offence is charged and the prosecution rely on the alternatives of intention and recklessness, there should be two counts; one charging an intent to endanger life, and the other reckless as to whether life is endangered: R v Hoof (1980) 2 Cr.App.R. (S.) 299.

For guidance on criminal damage, refer to Criminal Damage elsewhere in the Legal Guidance.

Threat to Destroy or Damage Property

Section 2 of the Criminal Damage Act 1971 creates two offences of threatening to destroy or damage:

  • property belonging to the person threatened or a third person; or
  • the defendant's own property in a way which is likely to endanger the life of the person threatened or a third person.

Two points must be considered, firstly that the conduct threatened must amount to an offence under section 1 of the Act and secondly, the person making the threat must intend that the threat is believed.

The defendant has to intend that the person threatened would fear that the threat would be carried out.

It is not necessary to show the other is actually in fear that the threat will be carried out, only that the accused intends the other to fear it will be carried out. The test is an objective one (R v Cakmak and others, Times 28 March 2002). The threat must be to another person, and can relate to a third party.

Such threats will usually occur in a public place and prosecutors should therefore consider whether an alternative charge under the Public Order Act 1986 would be more suitable. Section 8 of the Public Order Act 1986 provides that violence, except in the context of an offence of affray, includes violent conduct towards property.

Possessing Anything with Intent to Destroy or Damage Property

A charge under section 3 of the Criminal Damage Act 1971 will often be appropriate where the evidence falls short of an attempt to destroy or damage provided the necessary intent can be established, for example, when a defendant is stopped with petrol and matches before he or she has had a chance to set fire to anything. Alternatively, where the defendant is in possession of a baseball bat, prosecutors may consider a charge of possession of an offensive weapon more appropriate.

Section 3(a) is confined to damaging property belonging to another. Section 3(b), which is the offence in aggravated form, relates to the defendant's own property or the property of the user.

Explosive Substances Act 1883

The 1883 Act is the principal legislation for offences of causing explosions or possessing explosives with intent to endanger life or to cause serious injury to property.

Please see the Legal Guidance on Explosives for further information.

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Offences against the Person

It may be appropriate to charge an offence of assault where:

  • the assault is accompanied by aggravating features
  • it is necessary to properly reflect the suspect's conduct

In general, the more serious the public order offence, the more serious any assault charge attached to it should be. For example a charge of Riot might appropriately be accompanied by an offence/ offences contrary to section 18 or 20 of the Offences Against the Person Act 1861.

Less serious assaults can usually be incorporated into the facts of a more serious public order offence however.

Further guidance is contained in Public Order Offences incorporating the Charging Standard, elsewhere in the Legal Guidance.

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Contravening an order to disperse

Section 30(4) of the Anti-Social Behaviour Act 2003 provides for a police constable to direct that persons in a group disperse either immediately or by such time as he/she specifies. It is an offence for a person to knowingly contravene such an order. Because this offence is triable only summarily, a prosecution is unlikely to be required unless it is the only offence for which there is a realistic prospect of conviction against an individual, or it is linked with additional summary only offences.

Obstructing Emergency Workers

The Emergency Workers (Obstruction) Act 2006 makes it an offence to:

  • Obstruct or hinder certain emergency workers responding to an emergency situation; and
  • Obstruct or hinder those who are assisting emergency workers responding to emergency circumstances.

Emergency workers include:

  • Firefighters; and
  • Ambulance workers.

The maximum penalty for an offence under this Act is a level 5 fine.

Home Office Circular 003/2007 expands upon categories of persons who are covered, to include all fire and rescue services and those under contract as well as volunteers who provide an ambulance service on behalf of a Health Service.

Obstruction of a police officer

Wilful obstruction of a police officer is an offence contrary to section 89 of the Police Act 1996. The maximum penalty is one month imprisonment.

Inchoate offences

See Inchoate Offences elsewhere in the Legal Guidance for guidance on the following:

  • Assisting or encouraging crime under Part 2 of the Serious Crime Act 2007;
  • Incitement;
  • Attempts; and
  • Conspiracy.

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Observations on the Evidential Stage

Public disorder is likely to be chaotic and involve very large groups of people. This can present prosecutors with significant evidential challenges, particularly concerning the identification of offenders and the role they played. It is therefore essential that the evidence is carefully scrutinised, especially where those involved have covered or partially covered their faces and/or where arrests take place some time after the incident in question. Prosecutors should have particular regard to whether there is evidence that a person had equipped themselves with clothes or masks to prevent identification, items that could be considered body protection, or an item that can be used as a weapon, as such evidence may indicate the person anticipated disorder or there was an element of planning and pre-meditation.

In addition, prosecutors should consider whether there is evidence of telephone or computer records or social network activity to show that the suspect was closely involved in the commission of the offence. There may also be CCTV coverage or video footage from the police or recorded by witnesses and uploaded onto the Internet that may provide evidence of a person's participation. In some cases, images in the national and local media may provide evidence of a person's participation in an offence.

Evidence from Facebook, Blackberry Messaging, etc

It may be appropriate to consider charges for suspects who are alleged to have used Facebook or a BlackBerry mobile handset (including BlackBerry Messaging service (BBM)) to incite or encourage disturbances.

Where such web-based applications are used to mention specific locations and times for meetings within the messages concerned, prosecutors should consider using such evidence to support prosecutions for offences contrary to sections 44 to 46, or 59 of the Serious Crime Act (SCA) 2007. For example, in relation to inciting or encouraging an either way offence, the either way offence could be criminal damage or violent disorder. See Inchoate Offences guidance.

In prosecuting for offences under sections 44 to 46 of the SCA 2007, prosecutors should remember that:

  • Section 44 requires that the suspect by his act intended to encourage or assist the commission of an offence. The fact that the assistance or encouragement was a foreseeable consequence of his act is not sufficient. An offence contrary to section 44 is triable in the same way as the anticipated offence.
  • The section 45 offence is simpler to prove than the section 44 offence. For section 45, it is necessary to prove that the suspect believed that an offence would be committed, and that his act would encourage or assist its commission. An offence contrary to section 45 is triable in the same way as the anticipated offence.
  • Section 46 requires that the suspect believed that one or more of a number of potential offences would be committed; and that the suspect's act would encourage or assist the commission of one or more of those offences. An offence contrary to section 46 is triable only on indictment. The indictment should specify at least some of the offences that the defendant believed would be committed, but it does not have to be an exhaustive list.

The statutory defence of acting reasonably created by section 50 maybe available for the three offences set out above.

Where the messages are just generalised with no real plan being formulated, it may be possible to consider charging the summary offence contrary to section 127 of the Communications Act 2003. See Communication Offences guidance.

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Observations on the Public Interest Stage

The serious overall impact of the disorder in August 2011 has been such that prosecution will be in the public interest in all but the most exceptional of circumstances. See Levels of Decision-Making for public interest decisions not to prosecute.

The Code for Crown Prosecutors includes common public interest considerations. The following factors are likely to be of particular relevance, whether:

  • The offence involved the use of a weapon or the threat of violence;
  • The offence was committed against a person serving the public (for example, a member of the emergency services; a police officer; or a provider of public transport);
  • The offence was premeditated;
  • The offence was carried out by a group; and
  • A prosecution would have a significant positive impact on maintaining community confidence.

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Levels of Decision-Making

A decision to charge Riot should be approved by the Chief Crown Prosecutor (CCP) or Deputy Chief Crown Prosecutors (DCCPs). CCPs or DCCPs should notify the Principal Legal Advisor (PLA) where Riot is charged, so as to ensure that a central overview is maintained of such prosecutions. The PLA is also happy to be consulted in any cases in which the authorising of a charge of Riot is being considered.

Where a case arising from the occurrences of public disorder in August 2011 passes the evidential stage of the Full Code test and a prosecutor is considering taking no further action (NFA) on public interest grounds, any NFA decision will need to be approved by a lawyer of at least Level E.

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Bail

Prosecutors should apply the Bail Act provisions robustly and refer to any relevant comments relating to bail contained in Community Impact Statements or Victim Personal Statements. They should ensure that steps are in place to inform victims of the outcome of any applications for a remand in custody.

Prosecutors are reminded of their right of appeal against bail where they have recommended to the court a remand in custody and the defendant has been granted bail. See Right of Appeal in the chapter on Bail elsewhere in the Legal Guidance.

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Acceptance of Pleas

Pleas accepted which do not properly reflect the seriousness of the prosecution case or the presence of aggravating factors do a great disservice to victims. They also undermine public confidence in our overall decision-making.

Prosecutors should consider whether the pleas offered accurately reflect the alleged offences committed and whether such pleas provide the Court with adequate sentencing powers.

For example, it will usually be inappropriate to accept a plea to an offence of violent disorder where the defendant is also charged with burglary (and where the evidential stage of the Full Code Test is passed) or vice versa, as it is unlikely that a plea to one offence only would accurately reflect the overall harm alleged. One is an offence of violence and the other is of an acquisitive nature, so to seek to encompass both elements into one count on a "full facts" basis would not be an appropriate way to invite the court to proceed.

On the other hand, a plea to violent disorder alone may be an appropriate way to deal with allegations of both disorder and damage, where the details of the alleged damage can be properly encompassed within the details of the violent disorder.

Furthermore, in the context of multi-handed cases, there is frequently a knock-on effect and can lead to problems for the eventual sentencing judge.

Accordingly, when dealing with cases arising from the events of August 2011, prosecutors should have particular regard to the Attorney General's Guidelines on the acceptance of pleas, noting that:

"In cases involving multiple defendants, the bases of plea must be factually consistent with each other; the prosecutor must take account of the position of any other relevant defendant and also the overall impact of the pleas on the prosecution case." (AGG C1 & C3).

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Sentence

Prosecutors should ensure the availability of Victim Personal Statements and Community Impact Statements to the sentencing court where appropriate.

Prosecutors should in all cases consider whether an anti-social behaviour order (ASBO) should be sought. See Anti-Social Behaviour Guidance elsewhere in the legal guidance. Relevant prohibitions for those convicted following involvement in the disturbances of August 2011 include curfews, non-entry to certain boroughs/ locations and non-association with other known offenders.

Even in cases where a significant sentence of imprisonment has been imposed, as ASBO may still be an appropriate means of regulating an offender's behaviour upon their release back into the community where licence conditions alone would not achieve this objective (R v Avery, Medd-Hall, Avery and Nicholson [2009] EWCA Crim 2670).

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Youths

Youth Charging

Prosecutors are reminded that the interests of the youth must continue to be taken into account when deciding whether a prosecution is in the public interest. Where a youth is eligible for a reprimand or warning, according to the principles set out in section 65 of the Crime and Disorder Act 1998, the Home Office/Youth Justice Board Guidance on the Final Warning Scheme and the ACPO gravity matrix, the youth should generally be diverted from prosecution.

In exceptional circumstances where, for example there are many aggravating factors and very limited mitigation, a case may fall outside of the reprimand/ warning framework and a prosecution may be in the public interest. Where this occurs, it is essential that a full note is prepared, identifying the relevant aggravating factors and setting out the reasons for the decision.

Youth Bail and Remands

Youths aged 17 are subject to the Bail Act 1976 and if bail is refused, they will be remanded to a YOI or prison.

Youths aged 10 and 11 can only be remanded to local authority accommodation without a security requirement. However, the court can attach conditions to the remand e.g. curfew, restriction, non-association but it cannot direct the local authority to place the youth at a specific address.

Youths aged 12 to 16 can be remanded with a security requirement i.e. that the remand is to a secure children's home, Secure Training Centre, YOI or prison. There is a 2 stage test:

1. Bail must be refused on one or more of the grounds set out in the Bail Act 1976.
2. The offence and protection criteria set out in section 23 of the Children and Young Persons Act 1969 (CYPA 1969) must be satisfied.

The offence criteria are satisfied where:

  • The youth is charged with or has been convicted of a violent or sexual offence or an offence carrying imprisonment of 14 years or more in the case of an adult; or
  • The youth is a girl aged 12 to 16 inclusive or a boy aged 12 to 14 inclusive and is charged with or has been convicted of one or more imprisonable offences which, together with any other imprisonable offences of which she or he has been convicted in any proceedings amount to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation; or
  • The youth is a boy aged 15 or 16 and has a recent history of absconding while remanded to local authority accommodation, and is charged with or has been convicted of an imprisonable offence alleged or found to have been committed while he was so remanded.

NB The term "violent offence" is defined in section 23 (12) of the CYPA 1963 as an offence listed in Part 1 of Schedule 15 of the Criminal Justice Act 2003 and includes burglary with intent to commit unlawful damage to a building or anything in it, as well as riot, violent disorder and affray.

The protection criteria are satisfied where a security requirement is necessary to protect the public from serious harm from the youth or to prevent the commission by him/her of further imprisonable offences; and the Court is of the opinion after considering all the options for the remand of the person, that only a remand with a security requirement would be adequate to protect the public from serious harm.

Prosecutors should liaise with the youth offending team prior to the bail application to consider bail packages and address the court on whether the remand options are adequate to protect the public from harm or further offending.

Youths and Grave Crimes

A grave crime is one punishable with 14 years' imprisonment or more in the case of an offender over 21 (and some sexual offences).

Riot, violent disorder and non-residential burglary are not grave crimes and any youth charged with such offences must be tried in the youth court, unless jointly charged with an adult.

Youths and Reporting Restrictions

See the Legal Guidance Reporting Restrictions - Children and Young People as Victims, Witnesses and Defendants

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