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Public Order Offences incorporating the Charging Standard

Introduction

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'). Reference is also made to the offence of drunk and disorderly behaviour and offences involving emergency workers and disorderly behaviour on NHS premises, which prosecutors may consider as alternatives to the offences under the Public Order Act. This document provides guidance about the charge which should be preferred if the criteria set out in the Code for Crown Prosecutors are met.

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Charging Standard - Purpose

The charging standard below, gives guidance concerning the charge which should be preferred if the criteria set out in the Code for Crown Prosecutors are met. The purpose of charging standards is to make sure that the most appropriate charge is selected, in the light of the facts, which can be proved, at the earliest possible opportunity.

Adoption of this standard should lead to a reduction in the number of times charges have to be amended which in turn should lead to an increase in efficiency and a reduction in avoidable extra work for the police, CPS and the courts.

The guidance set out in this charging standard: 

  • should not be used in the determination of any investigatory decision, such as the decision to arrest; 
  • does not override any guidance issued on the use of appropriate alternative forms of disposal short of charge, such as cautioning or conditional cautions; 
  • does not override the principles set out in the Code for Crown Prosecutors; 
  • does not override the need for consideration to be given in every case as to whether a charge/prosecution is in the public interest; 
  • does not remove the need for each case to be considered on its individual merits or fetter the discretion to charge and to prosecute the most appropriate offence depending on the particular facts of the case.

This standard covers the following offences: 

  • riot - section 1 of the Act; 
  • violent disorder - section 2 of the Act;
  • affray - section 3 of the Act;
  • using threatening, abusive or insulting words or behaviour causing fear of or provoking violence - section 4 of the Act; 
  • using threatening, abusive or insulting words or behaviour, or disorderly behaviour intending to and causing harassment, alarm or distress - section 4A of the Act; 
  • using threatening, abusive words or behaviour, or disorderly behaviour likely to cause harassment, alarm or distress - section 5 of the Act; 
  • drunk and disorderly behaviour (section 91 Criminal Justice Act 1967); 
  • bind overs.

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. See Additional Charges and Charge Selection below for guidance on the selection of the appropriate number and type of charges in such cases.

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General Charging practice

You should always have in mind the following general principles when selecting the appropriate charge(s):

1. the charge(s) should accurately reflect the extent of the accused's alleged involvement and responsibility thereby allowing the courts the discretion to sentence appropriately;
2. the choice of charges should ensure the clear and simple presentation of the case particularly when there is more than one accused;
3. there should be no overloading of charges by selecting more charges than are necessary just to encourage the accused to plead guilty to a few;
4. there should be no overcharging by selecting a charge which is not supported by the evidence in order to encourage a plea of guilty to a lesser allegation.

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General Principle: Public Order Offences

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.

Riot 

Under section 1 of the Act, it must be proved that: 

  • twelve or more persons;
  • present together;
  • used or threatened unlawful violence (all charged must use);
  • for a common purpose; and that 
  • the conduct of them (taken together);
  • was such as to cause;
  • a person of reasonable firmness;
  • present at the scene;
  • to fear for his personal safety.

For a definition of unlawful violence see section 8 of the Act.

For the requisite standard of mens rea see section 6 of the Act.

Providing the above conditions are met each of the persons using unlawful violence for a common purpose is guilty of riot. Others can commit this offence by aiding, abetting, counselling or procuring the use of violence, e.g. encouraging, planning, directing or coordinating the activities of those involved in violent action. These should be charged as joint principals.

For additional assistance on drafting the indictment see Tyler and Others 96 Cr App R 332 (CA).

Charges under section 1 should only be used for the most serious cases usually linked to planned or spontaneous serious outbreaks of sustained violence

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.

An offence under section 1 is triable on indictment only. The maximum penalty on conviction is 10 years' imprisonment and/or a fine of unlimited amount.

A prosecution for riot or incitement to riot may be commenced only by, or with the consent of, the Director of Public Prosecutions refer to Consents to Prosecute, elsewhere in the Legal Guidance.

The decision to charge riot should be discussed with the Chief Crown Prosecutor or Deputy Chief Crown Prosecutor. CCPs or DCPs should notify the Director where any charge of riot is being pursued.

Violent Disorder 

An offence under section 2 is triable either way. It is difficult to see circumstances in which it would be appropriate to represent that charges brought under section 2 would be suitable for summary disposition. The maximum penalty on conviction on indictment is five years' imprisonment and/or a fine of unlimited amount. On summary conviction the maximum penalty is six months' imprisonment and/or a fine not exceeding level 5.

Under section 2 of the Act, it must be proved that: 

  • three or more persons;
  • present together;
  • used or threatened;
  • unlawful violence;
  • so that the conduct of them (taken together) would cause;
  • a person of reasonable firmness;
  • present at the scene;
  • to fear for his or her personal safety.

For the requisite standard of mens rea see section 6 of the Act. (Archbold 29-35).

This offence should only be charged in relation to instances of serious disorder falling short of those elements required to establish an offence under section 1. Planning may be an important ingredient in a case of violent disorder but regard should be had for the potential of minor incidents to flare up into serious disorder sufficient to meet the requirements of this section.

The offence may be committed in a public or private place. The relevant conduct may be directed against a person or persons or against property.

Examples of the type of conduct which may be appropriate for a section 2 offence include: 

  • fighting between three or more people involving the use of weapons, between rival groups in a place to which members of the public have access (for example a town centre or a crowded bar) causing severe disruption and/or fear to members of the public; 
  • an outbreak of violence which carries with it the potential for significant impact on a moderate scale on non-participants; 
  • serious disorder at a public event where missiles are thrown and other violence is used against and directed towards the police and other civil authorities.

Whilst three or more persons must have been present and used or threatened unlawful violence, it is not necessary that three or more persons should actually be charged and prosecuted: (R v Mahroof (1988) 88 Cr App R 317) (R v Fleming and Robinson (1989) 153 JP 517). The charge must make clear, however, that the defendant was one of the three or more involved in the commission of the offence.

The expression "present together" does not require any degree of co-operation between those who are using or threatening violence; all that is required is that they be present in the same place at the same time, R v NW, CA, 3 March 2010.

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Affray

An offence under section 3 is triable either way. The maximum penalty on conviction on indictment is 3 years' imprisonment and/or a fine of unlimited amount. On summary conviction the maximum penalty is 6 months' imprisonment and/or a fine not exceeding level 5.

Under section 3 of the Act, it must be proved that a person has used or threatened: 

  • 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.

The seriousness of the offence lies in the effect that the behaviour of the accused has on members of the public who may have been put in fear. There must be some conduct, beyond the use of words, which is threatening and directed towards a person or persons. Mere words are not enough. Violent conduct towards property alone is not sufficient for the purposes of an offence under section 3. For a definition of 'violence' in affray see section 8 of the Act .

The offence may be committed in a public or private place.

The notional bystander test is explained in the case of (R v Sanchez [1996] Crim L R 572 CA), and asserts that the hypothetical bystander, rather than the victim, must be put in fear for his or her personal safety. Apart from the hypothetical bystander, there must be present a 'victim' against whom the violence is to be directed (I & Others v DPP (2002) 1 AC 285 HL).

It is not enough for the prosecution to prove that unlawful violence has been used. There has to be violence of such a kind that a bystander would fear for his safety. Where the violence is focused solely and exclusively on the victim, such that it would be incapable of causing a person of reasonable firmness present at the scene to fear for his safety, then the offence is not made out (Leeson v DPP, unreported (2010)).

The level of conduct appropriate for charges under section 3 will often fall comfortably within the ambit of that anticipated within section 4 of the Public Order Act 1986. Affray should be considered in circumstances of serious and indiscriminate violence. Examples of the type of conduct appropriate for a section 3 offence include: 

  • A fight between two or more people in a place where members of the general public are present (for example in a public house, discotheque, restaurant or street) with a level of violence such as would put them in substantial fear (as opposed to passing concern) for their safety (even though the fighting is not directed towards them);
  • Indiscriminate throwing of objects directed towards a group of people in circumstances where serious injury is or is likely to be caused; 
  • The wielding of a weapon of a type or in a manner likely to cause people substantial fear for their safety or a person armed with a weapon who, when approached by police officers, brandishes the weapon and threatens to use it against them; 
  • Incidents within a dwelling should not be charged as affray merely because a lesser public order charge is not available. Offences of assault are likely to be more appropriate. Affray should be considered in circumstances analogous to those listed above where serious violence is used or threatened, and with due regard to the principles set out in R v Sanchez.

The accused must have intended to use or threaten violence; or have been aware that his conduct may be violent or may threaten violence.

The crown court is likely to be the more appropriate venue if a charge of affray is preferred.

Offences contrary to sections 5, 4A, 4, of the Act and section 91 Criminal Justice Act 1967

There is an overlap in the conduct required to commit any one of these offences.

To use this section of the Charging Guidance you should: 

  • consider which category the behaviour complained of falls into; and 
  • refer to the relevant paragraphs to identify which offence may be appropriate to charge and prosecute.

Elements required to prove Disorderly Behaviour (section 91, CJA 1967, section 5, section 4a and section 4(1)(a) POA)

Drunk & Disorderly contrary to section 91 CJA 1967 Section 5 of the ActSection 4A of the ActSection 4(1)(a)
disorderly behaviourthreatening or abusive words or behaviour or disorderly behaviourthreatening, abusive or insulting words or behaviour or disorderly behaviour threatening, abusive or insulting words or behaviour towards another person
in any public place in a public or private place (but not when confined to a dwelling house - see note below)in a public or private place (but not when confined to a dwelling house - see note below)in a public or private place (but not when confined to a dwelling house - see note below)
while drunkWith intention or awareness that behaviour may be disorderly;
 
or with intention or awareness that such behaviour may be threatening or abusive
With intent to cause and thereby causingEither: with intent to cause that  person to believe that immediate unlawful violence will be used against him or another by any person
or: with intent 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
 within the hearing or sight of a person likely to be caused  
 harassment, alarm or distressharassment, alarm or distress 

Note: Sections 4, 4A and 5 may take place in a public or private place. No offence under these sections is committed, however, if such conduct takes place inside a dwelling and the person to whom it is directed is inside that or another dwelling. The definition of a dwelling is set out in section 8 of the Act and discussed at (Archbold 29-38).

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Section 4

By virtue of section 4(2), section 4 can occur in a public and private place but not a dwelling.

The definition of 'dwelling' is contained in section 8 of the Act . Where common parts (a communal landing) were the means of access to living accommodation, they were not part of a dwelling, even though access was via an entry phone system, and were not part of the living area or home (Rukwira v DPP 1993 Crim L R 882).

The following types of conduct are examples which may at least be capable of amounting to threatening, abusive or insulting words or behaviour: 

  • 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.

Conduct which may be capable of amounting to threatening, abusive or insulting words or behaviour for the purposes of an offence under section 4 will be more serious than that required under section 4A or for threatening or abusive behaviour under section 5.

By virtue of section 31(1)(a) of the Crime and Disorder Act 1998 (as amended by the Anti-Terrorism, Crime and Security Act 2001), section 4 is capable of being charged as a discrete racially or religiously aggravated offence. Prosecutors should refer to the CPS Guidance on Prosecuting Racist and Religious Crime, elsewhere in the Legal Guidance.

Racially/religiously aggravated section 4 is an either way offence, with the maximum penalty on indictment being two years imprisonment or a fine or both. The maximum penalty on summary conviction is 6 months' imprisonment or a fine not exceeding the statutory maximum, or both.

Section 4A 

Section 4A carries a greater penalty than section 5 and is intended for the more directed and persistent type of behaviour required to prove the elements of intent and causation. The evidence of intention may be inferred from the targeting of a vulnerable victim.

Because it carries an equal penalty to section 4, it may also be considered appropriate for violent conduct beyond the scope of that normally considered appropriate to section 5.

Where the conduct is directed towards an individual and is so persistent that a restraining order should be sought, then proceedings under section 2 or section 4 of the Protection from Harassment Act 1997 should be considered preferable to available offences under the Public Order Act 1986.

Refer to Stalking and Harassment, elsewhere in the Legal Guidance.

By virtue of section 4(2), section 4A can occur in a public and private place but not a dwelling.

The definition of 'dwelling' is contained in section 8 of the Act . Where common parts (a communal landing) were the means of access to living accommodation, they were not part of a dwelling, even though access was via an entry phone system, and were not part of the living area or home (Rukwira v DPP 1993 Crim L R 882).

By virtue of section 31(1)(b)of the Crime and Disorder Act 1998 (as amended by the Anti-Terrorism, Crime and Security Act 2001), section 4A is capable of being charged as a discrete racially or religiously aggravated offence. Prosecutors should refer to the CPS Guidance on Prosecuting Cases or Racist and Religious Crime, elsewhere in the Legal Guidance.

Racially/religiously aggravated section 4A is an either way offence, with the maximum penalty on indictment being 2 years' imprisonment or a fine or both. The maximum penalty on summary conviction is 6 months' imprisonment or a fine not exceeding the statutory maximum, or both.

By virtue of Schedule 7 of the Serious Organised Crime and Police (SOCAP) Act 2005, section 4 and section 4A are both capable of being arrestable offences if the criteria in section 24A PACE (as amended by section 110 SOCAP Act 2005) is satisfied.

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Section 5

Sections 5(1) and 6(4) of the Public Order Act 1986 have been amended by section 57 of the Crime and Courts Act 2013. This amendment removes the word 'insulting' from the two sections with effect from 1 February 2014. The section 5(3) defences to this offence will remain the same. The effect of the amendment is that the "insulting" limb is also removed from the racially or religiously aggravated version of the section 5 Public Order Act offence (i.e. the offence contrary to section 31(1)(c) Crime and Disorder Act 1998).

The amendment is intended to enhance the protection of the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). Words or behaviour that are merely 'insulting', or the displaying of writing, signs or other visible representations which are merely 'insulting', within the hearing of someone likely to be caused harassment, alarm or distress, will no longer constitute a criminal offence under section 5(1). More serious, planned and malicious incidents of insulting behaviour could still constitute an offence under section 4A however. Section 4 of the Public Order Act 1986 (fear or provocation of violence) also retains the "insulting" limb.

Taking account of the removal of the "insulting" limb, prosecutors will need to carefully consider whether behaviour taking place on or after 1 February 2014 amounts to the commission of the section 5 offence. In the majority of cases, prosecutors are likely to find that behaviour that can be described as insulting can also be described as abusive. See Gough v Director of Public Prosecutions [2013] EWHC 3267 (Admin) in which the words 'threatening, abusive, insulting or disorderly' are discussed within the context of Article 10.

See also guidance that has been published by the College of Policing.

Whether behaviour can be properly categorised as disorderly is a question of fact. Disorderly behaviour does not require any element of violence, actual or threatened; and 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 (Chambers and Edwards v DPP [1995] Crim LR 896). The following types of conduct are examples, which may at least be capable of amounting to disorderly behaviour:

  • causing a disturbance in a residential area or common part of a block of flats;
  • persistently shouting abuse or obscenities at passers-by;
  • pestering people waiting to catch public transport or otherwise waiting in a queue;
  • rowdy behaviour in a street late at night which might alarm residents or passers-by, especially those who may be vulnerable, such as the elderly or members of an ethnic minority group;
  • causing a disturbance in a shopping precinct or other area to which the public have access or might otherwise gather;
    bullying.

Section 5 should be used in cases which amount to less serious incidents of anti-social behaviour. Where violence has been used, it is not normally appropriate to charge an offence under section 5 unless the physical behaviour amounts merely to pushing or undirected lashing out of a type likely to cause no more than a glancing blow, minor bruising or grazing. Such conduct may also be classified as disorderly and suitable for a charge under section 91 CJA 1967 in appropriate circumstances.

There must be a person within the sight or hearing of the suspect who is likely to be caused harassment, alarm or distress by the conduct in question. A police officer may be such a person, but remember that this is a question of fact to be decided in each case by the magistrates. In determining this, the magistrates may take into account the familiarity which police officers have with the words and conduct typically seen in incidents of disorderly conduct. (DPP v Orum [1988] Crim L R 848).

Although the existence of a person who is caused harassment alarm and distress must be proved, there is no requirement that they actually give evidence. In appropriate cases, the offence may be proved on a police officer's evidence alone.

Police officers are aware of the difficult balance to be struck in dealing with those whose behaviour may be perceived by some as exuberant high spirits but by others as disorderly. In such cases informal methods of disposal may be appropriate and effective; but if this approach fails and the disorderly conduct continues then criminal proceedings may be necessary.

In deciding whether a charge under section 5 is appropriate, the nature of the conduct must be considered in light of the penalty that the suspect is likely to receive on conviction.

Where there is reliable evidence that the accused was drunk in a public place at the time of the alleged offence to the extent that the accused had lost the power of self control, a charge of drunk and disorderly behaviour should be preferred where otherwise a section 5 charge would be appropriate.

By virtue of section 31(1)(c)of the Crime and Disorder Act 1998 (as amended by the Anti-Terrorism, Crime and Security Act 2001), section 5 is capable of being charged as a discrete racially or religiously aggravated offence, refer to CPS Guidance on Prosecuting Cases of Racial and Religious Crime, elsewhere in the Legal Guidance.

Racially/religiously aggravated section 5 is a summary only offence, with the maximum penalty being a fine not exceeding level 4 on the standard scale.

By virtue of Schedule 7 of the Serious Organised Crime and Police (SOCAP) Act 2005, section 5 is capable of being an arrestable offence if the criteria in section 24A PACE (as amended by section 110 SOCAP Act 2005) is satisfied.

Incitement to Racial Hatred Part III Public Order Act 1986

Refer to CPS Guidance on Prosecuting Cases of Racist and Religious Crime, elsewhere in the Legal Guidance.

Areas are reminded that any potential offence of incitement to racial hatred is to be referred to the Special Crime and Counter Terrorism Division.

Incitement to Religious Hatred Racial and Religious Hatred Act 2006

Refer to CPS Guidance on Prosecuting Cases of Racist and Religious Crime, elsewhere in the Legal Guidance.

Areas are reminded that any potential offence of incitement to religious hatred is to be referred to the Special Crime and Counter Terrorism Division.

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Harassment

Refer to Stalking and Harassment.

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 that 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 925).

Similar provisions do not exist for the return of alternative verdicts in the magistrates' courts.

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Additional Charges and Charge Selection

At most Public Order Incidents there will often be evidence of other offences.

Each course of conduct should be considered in the light of the facts of the particular case. The following should be considered in deciding which combination of offences should be charged where more than one is possible:

  • Where the offence is basically one of Public Disorder in which other less serious offences are made out it may be appropriate to charge the Public Order Offences alone;
  • 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 a proper reflection of the defendant(s) conduct would involve charging an assault, that charge should be preferred;
  • If loss damage or personal injury arose from group activity in which the defendant took part, and there is sufficient connection between his participation and the offence, a compensation order can be made regardless of the nature of the offence charged. (Section 130 Powers of Criminal Courts (Sentencing) Act 2000);
  • If the Public Order Offence is needed as well as other charges to reflect the defendants conduct then both or all should be charged.

The section below outlines combinations of Public Order Offences and other offences, which may be charged together, and those, which are probably best to avoid charging together.

The purpose behind the careful selection of charges is to ensure that there wherever possible there is one trial of the issues, and to avoid the risk of witnesses having to give the same evidence twice in different venues.

Charges Relating to Violence Against the Person

Charges of Assault that are appropriate to link to those of Public Order are set out below.

If there is sufficient evidence to justify a charge under section 1 of the Public Order Act and an assault contrary to: 

  • section 18 of the Offences Against the Person Act 1861 (OAPA); or 
  • 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 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 (section 39 of the CJA 1988) together with an offence contrary to sections 2 or 3 of the Act.

If there is sufficient evidence to justify a charge under section 4, 4A, or 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 you have evidence to prove conduct contrary to section 4, 4A or 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, 4A or 5 was directed at others who were not victims of common assault, consider charging both.

For guidance on charging for assaults refer to Offences Against the Person incorporating the Charging Standard, elsewhere in the Legal Guidance.

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Firearms and Offensive Weapons

If firearms offences can be proved against individuals they should be charged.

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 or bladed article, prosecutors should consider carefully whether it might be more appropriate to focus on the possession of the offensive weapon or bladed article (which are offences 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 consider charging both offences.

Where an indictable public order offence is made out you should reflect the unlawful possession of an offensive weapon or bladed article in a separate charge where the evidence is sufficient.

For guidance on weapons' charges refer to Offensive Weapons - Knives, Bladed and Pointed Articles, and to Firearms both elsewhere in the Legal Guidance.

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Criminal Damage

Offences of Criminal damage are frequently committed during Public Disorder. Where there is sufficient evidence to support both offences, consider charging both. If however the Public Disorder is serious and the criminal damage is minor, charge the Public Disorder offence alone. If the criminal damage is serious and the Public Order minor then consider charging the Criminal Damage alone. Charge the offence which most accurately reflects the facts.

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

Alternative Disposal - Bind Over 

When an incident of public disorder is reviewed, the decision of whether or not it is in the public interest to proceed with a charge will generally include consideration of a bind over as an alternative means of disposal.

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;
  • there is a danger that the conduct complained of will be repeated; and 
  • the accused consents to the proposed course of action.

The court may be asked to exercise its power in one of 3 ways:

a) By way of compromising proceedings already commenced. Where a decision to prosecute an offence has been made 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. This should only be done if circumstances have changed since the decision to prosecute a particular charge was made such as where a witness has not attended but there remains evidence that the Defendant was involved in a disturbance. If there has been no change in circumstances then continuation of the original charge is appropriate. Even where there has been a change in circumstances a prosecutor should be aware of the argument that a dismissal may be a more appropriate disposal. A Bind over order is neither a conviction nor properly speaking an acquittal. Victims of offences often feel cheated if an order is accepted for convenience; or

b) by complaint on summons. There may be a difficulty with this particularly if there has to be a trial in that by the time the case has finished there may no longer be a continued danger of a breach of the peace; or

c) by complaint when a Defendant has been detained for court by the police. This will result in bail being imposed in the pre-Bail Act form of 'in his own recognizance of £x' without conditions if the case is not resolved at the first hearing ,

Either (a) or (b) should be used if no charge is appropriate. Bind Over orders are not convictions and experience has shown that they may be difficult to enforce. These procedures can be useful but should be treated with care.

A suitable case for a complaint might be in a domestic argument where a section 4 Public Order Act offence could have been charged against one party if it were not for the fact that the incident took place inside a house.

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). However lawful behaviour even if provocative may not be sufficient to constitute a breach of the peace (Redmond-Bate v DPP (1999) 163 JP 789)

It may 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 you have identified the case as one which should proceed by way of bind over, then you should pursue the case on the basis of a complaint rather than charge for an offence even though no Bail Act conditions may apply if the case is adjourned.

Self Defence

A Public Order Offence may not be used as an alternative to an assault where self-defence is in issue. The law of self-defence is equally applicable to Public Order Offences. If it can't be proved that the defendant was not entitled to use or threatened violence in defence of himself or another, or of property, a Public Order Offence reliant on that element will fail, as would an assault.

See also, R v Rothwell and Barton (1993) Crim L R 626 and section 5(3) of the Public Order Act.
Archbold 29-16, self defence and violent disorder.
Archbold 29-23, self-defence and affray.
Archbold 29-32 self-defence and section 4 POA.

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Procedure - pre-trial

Casework Location

Cases of large-scale disorder of particular local concern, which either involve complex legal issues; or have a significant political or racial or religious ingredient should be considered by the CCP or DCP, who will determine where the case should be dealt with. If necessary the CCP or DCP will liaise with Central Casework Divisions.

Referral to Headquarters

Major outbreaks of disorder suitable for a riot charge will be referred to the CCP. Where appropriate the CCP will report the matter to Central Casework Divisions in order that a decision can be reached on whether: 

  • the Area will deal with the incident out of existing resources; or 
  • staff from other Areas or Central Casework Divisions should be seconded; or 
  • the whole incident should be handled by Central Casework Divisions.

Refer to Referral of Cases to CPS Headquarters (Central Casework Divisions, the Principal Legal Advisor, Private Office, Strategy and Policy Directorate and Press Office), the Chief Crown Prosecutors (Legal Directors in CPS London) or Group Complex Casework Units), elsewhere in the Legal Guidance.

Obstructing Emergency Workers

The following section is in addition to the Public Order Offences Incorporating the Charging Standard document agreed with ACPO in 2004:

The Emergency Workers (Obstruction) Act 2006, which came into force on 20 February 2007, contains two offences:

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

Venue and penalty

These offences are summary only and the maximum penalty is a level 5 fine (currently £5000).

Definition of 'emergency worker'

Section 1(2) defines 'emergency worker' as:

  • Fire fighters;
  • Ambulance workers;
  • Those transporting blood, organs or equipment on behalf of the NHS; and
    Coastguards and life crews.

Home Office Circular 003/2007 further explains that this Act will also cover those who are working under contract as well as volunteers who provide an ambulance service on behalf of a Health Service, including air ambulances. All Fire and Rescue Services are protected by the Act, no matter if providing a service for a local authority, private company, as a member of the Forces or at an airport.

Prosecutors should note that the offence of obstructing a fire fighter under the Fire and Rescue Services Act 2004 has been repealed by this Act.

This offence does not cover either police or prison officers, as obstruction of a police officer is an offence under the Police Act 1996, while the Prisons Act 1952 provides that prisons officers are to enjoy the same protections and privileges as a police constable, when on duty.

Definition of 'those assisting emergency workers'

Those who are assisting emergency workers will include those who, for example, are fetching equipment or directing traffic during an incident to assist the emergency workers. It covers voluntary and other organisations, as well as first-aiders.

Definition of 'emergency circumstances'

Section 1(4) defines 'emergency circumstances' as circumstances which are present or imminent, and which are causing or are likely to cause:

  • Death;
  • Serious injury;
  • Serious illness;
  • Worsen any serious injury or illness;
  • Likely to cause or worsen serious harm to the environment, buildings or property.

Definition of a person 'responding' to emergency circumstances

Section 1(3) defines 'responding' as:

  • going anywhere for the purpose of dealing with emergency circumstances occurring there; or
  • dealing with emergency circumstances or preparing to do so.

This means that it will be an offence to obstruct such workers even when the emergency they are responding to does not materialise. For example, an offence will be committed if a group of people call out the fire and rescue service when there is no emergency, but then obstruct them.

'Preparing to respond to an emergency circumstance' will include donning protective suits, attaching hoses to fire hydrants or other immediately preparatory activity: see Home Office Circular 003/2007.

These offences do not cover obstructing emergency workers while in training.

'Obstructing or Hindering'

Examples of obstruction may include:

  • parking where an emergency vehicle cannot get by;
  • damaging an emergency vehicle or equipment; and
  • giving false information at the scene of an emergency.

Defence of 'reasonable excuse'

No offence will be committed when the obstruction is inadvertent or unavoidable, such as when a person is stuck in traffic and cannot move to let an emergency vehicle through.

A court will take all relevant circumstances into account when deciding what is 'reasonable'.

Charging and Sentencing Guidance

An offence committed on an emergency worker, or a person serving the public, must be treated seriously. Paragraph 4.12(c) of the Code for Crown Prosecutors states that a prosecution is more likely if the offence has been committed against a victim who was at the time a person serving the public. This might include (but is not limited to) for example a police or prison officer or a nurse.

This is reflected in the Sentencing Guidelines Council guidance (issued in December 2004) on 'Overarching Principles: Seriousness'. The fact that an offence was committed against those providing a service to the public is identified as a 'serious aggravating factor'.

Other factors that have been identified in the 'Overarching Principles' guideline that may be relevant in this context are evidence of offenders acting as part of a group or a gang, and any evidence of planning or pre-meditation. If any of these factors are present in a particular case, it must be drawn to the attention of the court.

Accordingly, there is strong public interest in prosecuting such cases once the evidential test is met.

The offences under this Act should only be charged when the alleged conduct does not involve violence, fear of violence, threats, insulting, abusive or intimidating behaviour. If such elements are present, prosecutors should consider charging public order or assault offences, as, upon conviction, these will provide the courts with greater sentencing powers.

Anti-Social Behaviour Orders

Prosecutors should be aware that when the obstruction is part of a pattern of anti-social behaviour, consideration should be given to seeking an Anti-Social Behaviour Order on conviction.

NHS Memorandum of Understanding

On 1 November 2006, the CPS signed a Memorandum of Understanding with the NHS Security Management Service. The Memorandum of Understanding (MoU) emphasises the CPS' commitment to work with the NHS to tackle physical assault or abuse of NHS staff, and provides mechanisms to that effect. It is also a public statement of the seriousness with which any offence committed on NHS staff while on duty will be treated by Crown Prosecutors.

Reference should be made to this MoU and any local Service Level Agreements that have been agreed when a member of NHS staff has been obstructed or hindered in an emergency circumstance.

Offence of causing nuisance or disturbance on NHS premises

Section 119(1) of the Criminal Justice and Immigration Act 2008 ('CJIA 2008') is in force (in England only) from 30 November 2009.

This provision creates a new offence of causing without reasonable excuse and while on NHS premises, a nuisance or disturbance to an NHS staff member who is working there or is otherwise there in connection with work.

Additional ingredients of the offence are that a person must (i) refuse without reasonable excuse to leave the NHS premises when asked to do so by a constable or staff member, and (ii) not be on NHS premises for the purpose of obtaining medical advice, treatment or care for him or herself.

Definition of 'NHS premises'

Section 119(4) (a), (b) and (c) defines 'NHS premises' as any hospital managed by a relevant English NHS body, NHS Trust, a Primary Care Trust, an NHS foundation trust or Local Health Board. It includes any building or vehicle associated with the hospital situated on hospital grounds (this would include ambulances, air ambulances and paramedic vehicles). 'Hospital grounds' means land in the vicinity of the hospital.

Definition of 'NHS staff member'

Section 119(4) defines 'NHS staff member' as a person employed by a relevant NHS body, whether as a contractor or volunteer or otherwise.

'Nuisance or Disturbance'

Although not defined in the CJIA 2008 for the purpose of these provisions a nuisance or disturbance against an NHS staff member can be described as any form of low-level anti-social behaviour on NHS premises that breaches the peace. This can include but is not limited to:

  • Using foul language and verbally abusing NHS staff
  • Using intimidating gestures towards NHS staff, patients or visitors
  • Creating excessive noise in waiting areas or wards
  • Obstructing thoroughfares

Physical violence or assault on NHS staff, patients or visitors is covered by existing criminal offences and may not be described as causing a nuisance or disturbance.

Defence of 'reasonable excuse'

Examples of a reasonable excuse could be that a person may have earlier received distressing news about a friend or relative who they had accompanied to hospital, or that behaviour alleged was as a result of a mental health condition or learning disability. Persons causing a nuisance or disturbance whilst under the influence of drugs or alcohol will not ordinarily be able to use this as a reasonable excuse for their behaviour. A court will take all relevant circumstances into account when deciding what is 'reasonable'.

Venue and Penalty

This offence is summary only and the maximum penalty is a level 3 fine (currently £1000).

Section 120 of the CJIA 2008 gives police constables, authorised officers (and appropriate NHS staff members authorised by an authorised officer) the power to remove a person reasonably suspected of committing an offence under section 119. A person may be removed using reasonable force if necessary. An authorised officer cannot remove a person (or authorise another person to do so) if they believe a person requires medical advice, treatment or care, or that removal would endanger their physical or mental health.

Charging and Sentencing Guidance

An offence committed against an NHS staff member, or a person serving the public, must be treated seriously. Accordingly, there is strong public interest in prosecuting such cases once the evidential stage of the Full Code Test is met.

Reference should also be made to the NHS Memorandum of Understanding with the NHS Security Management Service, see above, and any local Service Level Agreements that have been agreed.

When considering how to deal with such cases, prosecutors should take into account previous incidents and, where there has been repeat offending, consider applying for an ASBO. A community impact statement from the local NHS security management specialist may also be of assistance.

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