Public Order Offences incorporating the Charging Standard

• Introduction
• Charging Practice
• The right to peaceful protest
• Casework Referral
• The Public Order Act 1986
  • Riot (section 1)
  • Violent Disorder (Section 2)
  • Affray (Section 3)
  • Section 4
  • Section 5
• Elements Required To Prove Disorderly Behaviour (S 91, CJA 1967, S 5, S 4A AND S 4(1)(a) POA)
  • Dwelling
  • Defence of “reasonable conduct”
• Public Interest
• Racially/Religiously Aggravated Offences
  • Incitement to Hatred on the grounds of Race, Religion or Sexual Orientation
• Harassment
• Additional Charge and Offence Selection
• Charges relating to Violence Against the Person
  • Charges relating to public sexual intimidation, abuse or harassment
• Potential offences
• Sexual assault
• Common assault or Actual Bodily Harm
• Section 4A
• Section 5
• Exposure
• Outraging public decency
• Voyeurism
• Up-skirting
• Voyeurism breastfeeding
• Communications offences
  • Stalking and Harassment
• Harassment
• Stalking
• Offences relating to children
• Firearms and Offensive Weapons
• Criminal Damage
• Burglary
• Obstructing Emergency Workers
• Causing Nuisance or Disturbance on NHS Premises
• Alternative Disposal - Bind Over
• Evidential Considerations
  • Identification
  • Self defence

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.

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.

Charging Practice

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

• 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;
• The choice of charges should ensure the clear and simple presentation of the case particularly when there is more than one accused;
• 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;
• 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.

The right to peaceful protest

Please refer to the Legal Guidance on Offences during Protest, Demonstration or Campaigns

Casework Referral

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 Chief Crown Prosecutor (CCP) or Deputy Chief Crown Prosecutor (DCCP), who will determine where the case should be dealt with. If necessary the CCP or DCCP will liaise with Central Casework Divisions.

Major outbreaks of disorder suitable for a riot charge must 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.

See Referral of Cases elsewhere in this Legal Guidance.

The Public Order Act 1986:

Riot (section 1) differs from Violent Disorder (section 2) in the following respects:

• The minimum number involved (twelve in riot, three in violent disorder);
• In riot the twelve or more persons must act for a “common purpose.” This is not necessary for violent disorder.
• Riot requires that the defendant uses actual violence either themselves or through aiding and abetting others in the group of twelve or more to use violence. For violent disorder the defendant may be guilty through using threats of violence alone (either personally or by aiding and abetting the other two present.)   

The offence of Affray (section 3) envisages at least three persons:

1. The person using or threatening unlawful violence
2. A person towards whom the violence or threat is directed; and

• A person of reasonable firmness (who need not actually be, or be likely to be, present.)

Riot (section 1)

Triable only on indictment

Maximum: 10 years’ custody

This is a violent specified offence for the purposes of section 226A of the Criminal Justice Act 2003

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

• The defendant used unlawful violence whilst they were one of twelve or more persons present together
  • who used or threatened unlawful violence
  • for a common purpose;
  • and that the conduct of them (taken together)
  • was such as would cause a person of reasonable firmness (had such a person been present at the scene) to fear for their own personal safety

The offence may be committed in a public or private place. The violence may be directed against persons or property. It is immaterial whether or not the 12 or more use or threaten unlawful violence simultaneously.

For the definition of “unlawful violence” see section 8 of the Act.

For mens rea, see section 6 of the Act.

Providing the above conditions are met each of the persons using (not just threatening) unlawful violence for a common purpose is guilty of riot. Threatening violence alone cannot amount to an offence under this section. To be guilty of the offence the defendant must be with others who are using or threatening violence and the defendant must have either:

• personally used violence; or
• aided, abetted, counselled or procured the use of violence so as to be jointly liable, e.g. encouraging, planning, directing or coordinating the activities of those involved in violent action.

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

Conduct which falls within the scope of this offence may have (though it is not necessary) one or more of the following characteristics:

• The normal forces of law and order break down;
• Due to the intensity of the attacks on police and other civilian authorities, normal access by emergency services is impeded;
• 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 to have a serious impact upon a significant number of non-participants for an appreciable length of time;
• Organised or spontaneous large scale acts of violence on people and/or property.

Consents to Prosecute

Under section 7 of the Act, 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 must be referred to the Chief Crown Prosecutor. See Legal Guidance on Referral of Cases.

Violent Disorder (Section 2)

Triable either way

Maximum: 5 years’ custody

This is a violent specified offence for the purposes of section 226A of the Criminal Justice Act 2003

Section 2 of the Act creates the offence of violent disorder. It will ordinarily be appropriate for an adult charged with this offence to be tried in the Crown Court. 

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 (had such a person been present at the scene) to fear for their own personal safety.

For mens rea, see section 6 of the Act.

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 violence may be directed against persons or property. It is immaterial whether or not the three or more defendants use or threaten unlawful violence simultaneously

Examples of the type of conduct which may be appropriate for a section 2 offence include (but are not limited to):

• Fighting 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.

Under section 7(3), where a defendant is tried for Violent Disorder, the jury may find them guilty of an offence under section 4. This means that (by virtue of section 6(5) of the Criminal Law Act 1967), the defendant may plead not guilty to Violent Disorder but guilty to section 4 in the Crown Court. 

R v Mahroof (1988) 88 Cr App R 317:  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. The charge must make clear, however, that the defendant was one of the three or more involved in the commission of the offence.

R v NW [2010] EWCA Crim 404: 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.

Affray (Section 3)

Triable either way

Maximum: 3 years’ custody

This is a violent specified offence for the purposes of section 226A of the Criminal Justice Act 2003

Under section 3 of the Act, it must be proved that:

• a person has used or threatened
  • unlawful violence towards another
  • and their conduct is such as would cause a person of reasonable firmness (had such a person been present at the scene) to fear for their own personal safety.

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

The threat cannot be by words alone.

“Violence” does not include violence against property alone (see section 8 of the Act)

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

Examples of the type of conduct appropriate for a section 3 offence include (but are not limited to):

• 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;

Where the facts of the offence make it suitable for summary trial, prosecutors should consider charging one of the offences under sections 4, 4A or 5 of the Act or an offence of common assault or battery rather than affray. 

Under section 7(3), a jury which acquits a defendant of affray may bring in an alternative verdict of an offence contrary section 4 of the Public Order Act. This means (by virtue of section 6(5) of the Criminal Law Act 1967) that the defendant may plead not guilty to affray but guilty to section 4 in the Crown Court.

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.

R v Sanchez [1996] Crim L R 572 CA: It is the hypothetical bystander (see below), rather than the victim, who must be put in fear for his or her personal safety.

The courts have emphasised that the purpose of affray is to protect members of the public from being put in fear of being caught up in violence which is not directed against them.  Other charges are available for the protection of persons at whom the violence is aimed.

I & Others v DPP (2002) 1 AC 285 HL: Apart from the hypothetical bystander, there must be present a 'victim' against whom the violence is to be directed.  The offence was not made out where a group of youths were in possession of petrol bombs apparently waiting for a rival gang, but where they did not light them or brandish them.

Leeson v DPP [2010] EWHC 994 (Admin): 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 their 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.  

The Hypothetical Bystander Test

In most cases, where the conduct of those charged amounts to riot or violent disorder, there should be no difficulty in establishing that a hypothetical bystander would fear for their personal safety. The test is an objective one: had such a person been present and assuming that person to have been of reasonable firmness, would that person have been likely to have feared for their safety even if they were not directly targeted? 

“At the heart of each of these three statutory public order offences [riot, violent disorder and affray] lies the use or threat of unlawful violence of a kind that would cause a person of reasonable firmness present at the scene to fear for his personal safety. In other words, the mischief to which these sections of the Act are directed is public disorder, that is, conduct of a violent or threatening kind that would cause ordinary members of the public going about their lawful business to fear for their safety if they happened to come upon it. The offences of riot, violent disorder and affray are carefully graduated, both by reference to the number of persons who must be present in order for the offence to be committed and by reference to the purposes for which violence is used or threatened.” (R v NW [2010] EWCA Crim 404.)

Section 4

Fear or Provocation of Violence

Triable summarily

Maximum: 6 months’ custody

See Table below for the elements of this offence.

The following types of conduct are examples which may amount to section 4 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.

The unlawful violence feared/likely to be provoked, etc. must be “immediate” (R v Horseferry Road Magistrates’ Court [1991] 1 All E. R. 324: The publishers of a book (The Satanic Verses) had not committed any offence under section 4 as any violence provoked was too remote from the action of publishing the book to qualify as “immediate”. 

Section 4A

Intentional Harassment, Alarm or Distress

Triable summarily

Maximum: 26 weeks’ custody

See Table below for the elements of this offence.

Section 4A carries a higher maximum than section 5.  It requires the intention to cause harassment, alarm or distress to a specific victim. This can usually be proved where there is evidence of specific, directed abuse. 

However, it is important to remember that proving the defendant’s intent is not enough.  There must also be evidence of somebody (which need not be the person targeted) suffering actual harassment, alarm or distress as a result.  The evidence of this could come from that person themselves or it could come from another witness who can say that the person displayed signs of harassment, alarm or distress.  As the effect on the victim is an essential element of the offence, prosecutors should not presume that it had that effect but should seek evidence which is capable of proving it. 

Section 4A creates circumstances in which the type of language or behaviour which would otherwise fall under section 5 can be charged as a more serious offence. 

However, prosecutors should have regard to the principles of charging which are that an offence should be selected which reflects the seriousness of the offence and gives the court sufficient sentence powers.  This will not always mean that the most serious offence made out on the evidence should be charged.  If all the elements of the offence of section 4A are made out, prosecutors should still consider whether a charge under section 5 will be adequate to reflect the seriousness of the offence and give the court sufficient sentencing powers. 

Factors tending to indicate that a charge under section 4A is appropriate would include:

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

Factors tending to indicate that a charge under section 5 is sufficient would include:

• Single remark
• Victim is not alone/isolated
• Effect is minor/transitory

Prosecutors should also consider charging offences under sections 2 or 4 of the Protection from Harassment Act 1997 if the conduct complained of is consists of two or more occasions. 

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

Section 5

Harassment, Alarm or Distress

Triable summarily

Maximum: Level 3 fine

See Table below for the elements of this offence.

With effect from 1 February 2014, section 5 no longer includes words, behaviour, or displays which are simply “insulting”. 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).

Prosecutors will need to consider carefully whether behaviour 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 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 (non-exhaustive) examples, which are 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; be Causing a disturbance in a shopping precinct or other area to which the public have access or might otherwise gather;

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, if the suspect was drunk. 

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 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 (1989) Cr. App R 261 )

Section 5 is a summary only offence and the maximum penalty is a level 3 fine.

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.

Elements Required To Prove Disorderly Behaviour (S 91, CJA 1967, S 5, S 4A AND S 4(1)(a) POA)

Dwelling

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.

The following have been held not to be or form part of a dwelling for the purposes of the Act:

• A communal landing allowing access to flats within a block and accessed via an entry phone: (Rukwira v DPP 1993 Crim L R 882)
• A police cell ( v Francis [2006] EWCA Crim 3323)
• A communal laundry room in sheltered accommodation (Le Vine v DPP [2010] EWHC 1128 (Admin))
• A garden (DPP v. D [2017] EWHC 2244 (Admin))

Defence of “reasonable conduct”

Sections 4, 4A and 5 all provide a defence that the conduct was “reasonable” and the courts have tended to regard this defence and Article 10 rights as interlinked.

Hammond v DPP [2004] EWHC 69 (Admin): It was open to justices to find that signs referring to homosexuality and lesbianism as immoral were “insulting” and, having taken into account the defendant’s rights under Articles 9 and 10, to find that his behaviour in displaying them was not reasonable

Gough v DPP [2013] EWHC 3267 (The naked rambler case) The District Judge had been entitled to find that the defendant’s conduct in walking through a crowded street was “disorderly” and that prosecution was a proportionate response which did not violate his rights under Article 10.

NB both the above cases were decided before the amendment to the Act which removed the “insulting” limb under section 5.

Public Interest

Where there is evidence sufficient to charge an offence under sections 1, 2 or 3 of the Act it will be rare for a decision to be taken that it is not in the public interest to prosecute.

Where there is evidence that a person has come to a protest equipped with:

• clothes which could prevent identification (such as a face mask); or
• items which could be used for body protection; or
• items which could be used as weapons, 

Prosecutors should consider whether it indicates that the person attended the protest expecting disorder or has planned to create disorder at the protest. This will be a relevant consideration when prosecutors come to consider the public interest test.

It is important that prosecutors consider the incident as a whole in order to assess the context in which the offence was committed. It may be that the alleged act committed is so remote from the main action that it cannot be considered part of it and should be considered as an incident on its own.

Where the evidence amounts to one of the less serious offences under the Act (sections 4, 4A or 5) the public interest may be less likely to require a prosecution. 

Factors which make it likely that the public interest is met for a charge under sections 4, 4A or 5 would include:

• Where the offence is aggravated by hostility based on the victim’s sexual orientation, gender identification or disability. See Legal Guidance on prosecuting hate crimes. (Where hostility is based on the victim’s race or religion this should be reflected by use of the specific charges available, see below “Racially/Religiously Aggravated Offences.”)
• Where the offence, even if relatively minor by itself, is part of a larger scale incident which has caused or is intended to cause significant disruption to members of the public or businesses.

Racially/Religiously Aggravated Offences

Where an offence under sections 4, 4A or 5 is aggravated by racial or religious hostility (defined at section 28(1) of the Crime and Disorder Act 1998), a specific racially or religiously aggravated version of the offence is available. 

These aggravated offences carry a higher maximum penalty than the basic equivalent offences. 

In the case of offences under section 4 or 4A of the Act, the racially or religiously aggravated version of the offence is either-way with the maximum penalty on indictment being two years’ imprisonment or an unlimited fine or both. The maximum penalty on summary conviction is six months’ imprisonment or an unlimited fine or both.

Racially or religiously aggravated section 5 is a summary only, non-imprisonable offence and the maximum penalty is a level 4 fine.

Where there is credible evidence to prove the racially or religiously aggravated form of the offence, this should always be charged.  The basic offence should also always be charged (as an alternative in the case of summary trial since the magistrates cannot bring in an alternative verdict) but a plea to the basic offence is not acceptable. 

Prosecutors should refer to the CPS Guidance on Prosecuting Racist and Religious Crime, elsewhere in the Legal Guidance.

Incitement to Hatred on the grounds of Race, Religion or Sexual Orientation

Parts III and 3A of the Act create offences of inciting hatred based on race, religion or sexual orientation.

Refer to CPS Legal Guidance on Prosecuting Cases of Racist and Religious Crime, and Homophobic, Biphobic and Transphobic Hate Crime.

Proceedings for any of these offences may only be instituted with the consent of the Attorney General.  Where a case alleging incitement to hatred based on race, religion or sexual orientation is referred to Area, Area must prepare a report for SCCTD so that SCCTD and Area can have an informed discussion on where the responsibility for the case should lie.  

Harassment

Refer to Stalking and Harassment elsewhere in this Legal Guidance.

Additional Charge and Offence Selection

Decisions on what offence or combination of offences should be charged will inevitably be case-specific.  The purpose of charge selection is to facilitate the presentation of the prosecution case to the court so that it can be easily understood whilst ensuring that the charges reflect the gravity of the offences and give the court sufficient sentencing power.

It may be that this can best be achieved by charging a Public Order Act offence only, where for instance other offences are part and parcel of that offence.  But there may be occasions where circumstances make it more appropriate to charge offences in addition to the Public Order Act offence, for instance where an assault is particularly serious or where it is aggravated by use of a weapon.

The following sections outline combinations of Public Order Offences and other offences, which may be charged together and those which it is probably best to avoid charging together.

Charges relating to Violence Against the Person

Where a defendant has been charged with riot, if there is evidence that they have committed a serious assault (sections 18 or 20 of the Offences against the Person Act 1861 (OAPA)), then it will usually be appropriate to charge the assault as well as the riot due to the serious nature of the assault.  It will not usually be appropriate to charge any less serious assault, such as section 47 OAPA, in addition to a charge of riot.

Where there is sufficient evidence to charge violent disorder (section 2) or affray (section 3) under the Act then if there is also sufficient evidence of an offence contrary to sections 18, 20 or 47 of the OAPA it will usually be appropriate to charge the assault in addition to the Public Order Act offence.  If, however, the assault amounts only to common assault or battery it will not usually be appropriate to charge this as well as the violent disorder or affray.

Where the evidence supports charges under sections 4, 4A or 5 of the Act but there is sufficient evidence to charge an assault under sections 18, 20 or 47 of the OAPA then it will usually be the better course to charge the assault alone.  Where the assault amounts only to battery or common assault then it will still usually be sufficient to charge the assault without adding the Public Order Act charges, however, where there were others who were not assaulted but were targeted by the abuse/threats etc. it may be appropriate to add charges under sections 4, 4A or 5 to reflect the offences against them.

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

Where the victim of the assault is an emergency worker then the Assaults on Emergency Workers (Offences) Act 2018 will apply.  See also the chapter on that Act elsewhere in this Legal Guidance. 

Charges relating to public sexual intimidation, abuse or harassment

Terms such as “street-based harassment” and “public sexual harassment” have been used to describe unwanted sexualised comments and behaviour directed mostly towards women by men in public places. Most of these incidents are committed by men towards women, but they can be committed by anyone towards any other person. This section outlines some of the potential offences that may be committed. Every case will be fact specific, and when determining what, if any, charges can be brought prosecutors should consider each individual case on its own merits.

Potential offences

When the incident involves physical or attempted physical contact, the following offences may be relevant:

Sexual assault

Prosecutors should refer to the Rape and Serious Sexual Offences guidance when considering this offence. Prosecutors should consider this offence if a perpetrator has sexually touched or attempted to sexually touch the victim. Touching is widely defined and includes touching another person with any part of the body, or with anything else and can be through clothing. In R v H (Karl Anthony) [2005] 2 Cr. App. R. 9 the Court of Appeal held that the touching of an individual’s clothing was sufficient to amount to ‘touching’ for the purposes of sexual assault.

Prosecutors should note the decision in Attorney General’s Reference (No 1 of 2020) [2020] EWCA Crim 1665.  This case involved a passenger on a train kissing another passenger on the lips without her consent. The issue was whether the touching was sexual. The court held that it is not necessary for the prosecution to prove, as an element of the offence of sexual assault, that the defendant intended his touching of the victim to be sexual. Instead, under section 78(b) of the Sexual Offences Act 2003 whether the touching is sexual is an objective test. Touching is sexual if a reasonable person would consider that because of its nature it may be sexual, and, because of the accused's purpose, it was sexual.

Common assault or Actual Bodily Harm

Prosecutors should refer to the Offences Against the Person guidance when considering these offences. These offences should only be considered if there is insufficient evidence to prove a sexual element of the assault. 

When the incident involves words or behaviour, and physical contact is not used or attempted then the following offences may be relevant:

Section 4A

As outlined above this offence involves the intention to cause (and thereby causing) harassment, alarm, or distress to a specific victim by words or behaviour. This offence could be appropriate for single incidents involving sexually threatening, abusive, or insulting words or behaviour directed towards a stranger in public. As the effect on the victim is an essential element of the offence, prosecutors should seek evidence which demonstrates the impact of the behaviour. This could come from the victim directly or from another witness who observed the effect.

Section 4A is committed when a person uses threatening, abusive or insulting words or behaviour. Whether words or behaviour are threatening, abusive or insulting will depend on the facts of the case.

Section 5

The section sets out the elements of this offence. This offence could be appropriate for single, less serious incidents of sexually threatening or abusive words or behaviour, or disorderly behaviour directed towards a stranger in public. Disorderly behaviour has been interpreted widely and examples could include unwanted sexual comments directed towards a stranger in public where it is not possible to prove that the perpetrator had an intention to cause harassment, alarm, or distress to a specific victim.

The cases of Holloway v DPP [2004] EWHC 2621 (Admin) and R. (on the application of Owusu-Yianoma) v Chief Constable of Leicestershire [2017] EWHC 576 (Admin) held that there is no requirement to prove that any person was harassed, alarmed or distressed. It is sufficient if the abusive words are uttered within the hearing or sight of a person likely to be caused harassment, alarm, or distress. There is no requirement for any evidence from bystanders who saw or heard what was being said or that they were alarmed or harassed.

Exposure

Section 66 of the Sexual Offences Act 2003 provides that a person commits an offence if they intentionally expose their genitals and intend that someone will see them and be caused alarm or distress. The term “genitals” is not defined in the Act and it should be given it’s natural meaning covering the external male and female genitalia. The terms “alarm or distress” are also not defined within the Act and they should be treated as ordinary words adopting the interpretation from the Public Order Act.

The case of Mohammed Rakib [2011] EWCA Crim 870 considered what evidence was required to prove the “exposes” element of the offence. The Court held that whether the appellant was exposing himself was a matter for the jury to consider on all the evidence. If a prosecutor determines that there is insufficient evidence to prove this element of the offence, then they should consider an offence of outraging public decency.

The mental element of the offence is that the defendant must intentionally expose their genitals and intend that someone will see them and be caused alarm or distress. If the purpose in exposing their genitals is to obtain sexual gratification this is not sufficient, and an offence of outraging public decency should be considered.

If a defence of naturism is raised prosecutors should refer to the “Nudity in Public - Handling Cases of Naturism” legal guidance.

Outraging public decency

It is an offence at common law to do in public any act of a lewd, obscene, or disgusting nature that outrages public decency. This offence should only be considered if the incident falls outside the statutory offences, for example if it is not possible to prove the mental element required for an exposure offence or exceptionally, if the offence merits a higher penalty than that available in relation to the statutory offence.

When considering this offence prosecutors should refer to the “Nudity in Public - Handling Cases of Naturism” legal guidance.

Voyeurism

Prosecutors considering this offence should refer to the Voyeurism legal guidance. The offence requires the observation or recording of a “private act”. In R v B [2012] EWCA Crim 770 the Court of Appeal held that a person is doing a private act if they are in a place, which, in the circumstances would reasonably be expected to provide privacy. This is an objective test, and can cover, for example public toilets, changing cubicles at public swimming pools or enclosed gardens.

Up-skirting

“Up-skirting” is a colloquial term referring to the action of placing equipment such as a camera or mobile phone beneath a person’s clothing to take a voyeuristic photograph without their permission. It is not confined to victims wearing skirts or dresses as it applies equally when men or women are wearing kilts, cassocks, shorts, or trousers. The offence is often committed in crowded public places, for example on public transport or at music festivals. Prosecutors considering this offence should refer to the Voyeurism legal guidance.

Voyeurism breastfeeding

Section 48 of the Police, Crime, Sentencing and Courts Act 2022 (PCSC Act) introduced the offence of voyeurism whilst a person is breast-feeding a child. The PCSC Act amended section 67A the Sexual Offences Act 2003, and the new offence is contained within section 67A(2A). The offence applies to acts committed on or after 28 June 2022.

The offence is committed when a person operates equipment to enable themselves or someone else to observe a victim breastfeeding, without the victim’s consent and without reasonably believing that the victim consented. The definition of breastfeeding includes the victim rearranging their clothing in preparation to breastfeed a child or rearranging their clothing having just finished breastfeeding a child.

The requisite intention is that the offender intended to obtain sexual gratification for themself or another, or had the intention to humiliate, alarm or distress the victim. The offence can be committed in a public or private place and it is irrelevant whether the victim’s breasts were exposed or not whilst they were breast-feeding the child. It is also irrelevant what part of the victim’s body is in the recording or what part of the victim’s body the offender intended to be visible in the recorded image. It is also irrelevant what part of the victim’s body the offender intended to be observed. The offence is triable either way and the maximum sentence is 2 years imprisonment. Prosecutors considering this offence should refer to the Voyeurism legal guidance

Communications offences

These offences may occur as public sexual abuse as perpetrators may, for example, send unwanted sexual images to strangers in public spaces. This could include incidents of “Cyberflashing” a practice that typically involves offenders sending unsolicited sexual images via data sharing services such as Bluetooth and Airdrop. These offences are often committed on public transport or at large public gatherings. Prosecutors considering these offences should refer to the Social Media Communications legal guidance.

Stalking and Harassment

Harassment

Prosecutors should refer to the Stalking and Harassment legal guidance if considering this offence. Whilst the term “street-based harassment” has been used to describe unwanted sexual comments it is important to note that harassment has a defined legal meaning. Harassment requires a course of conduct and is likely to involve repeated attempts to impose unwanted communications or contact upon a victim in a manner that could be expected to cause distress or fear in any reasonable person. Prosecutors should carefully consider whether the facts of a case amount to a course of conduct. Repeated comments during a single short incident are unlikely to satisfy this element of the offence and charges contrary to the Public Order Act may be more appropriate.

Stalking

Prosecutors should refer to the Stalking and Harassment legal guidance if considering this offence. Similarly to harassment, this offence requires a course of conduct and therefore the prosecution must prove that the behaviour has been carried out repeatedly. This offence may be appropriate if a perpetrator has repeatedly followed or watched a victim or loitered in a location where they know they will encounter the victim.

Offences relating to children

If the victim of the incident is a child there are potentially additional offences that are available to prosecutors. For example, sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003, causing a child to watch a sexual act contrary to section 12 of the Sexual Offences Act 2003 and sexual communication with a child contrary to section 15A of the Sexual Offences Act 2003. Prosecutors should refer to the Rape and Serious Sexual Offences guidance when considering these offences.

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;
• whether it was used or its use threatened;
• how it was used;
• the potential for serious injury;
• whether the weapon was discovered on arrest or produced during the incident.

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, the unlawful possession of an offensive weapon or bladed article should normally be reflected 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.

Criminal Damage

Offences of criminal damage are frequently committed during public disorder. Where there is sufficient evidence to support both a criminal damage and a public order offence, prosecutors should consider charging both. If, however, the public disorder is serious and the criminal damage is minor, prosecutors should charge the public disorder offence alone. If the criminal damage is serious and the public disorder minor then prosecutors 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.

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.

Opportunistic offenders who, whilst they do not take part in the disorder, take advantage of it to enter premises to steal (even if only, for example, by leaning through a broken shop window to remove goods) should be charged with burglary rather than theft to reflect the serious context of the offence.

Obstructing Emergency Workers

These offences are summary only and the maximum penalty is an unlimited fine.

The Emergency Workers (Obstruction) Act 2006, creates two offences:

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

The emergency workers covered by the Act are defined in section 1(2).  Essentially it applies to:

• Firefighters
• Ambulance crew
• Coastguards
• Lifeboat crew

“Emergency” is defined at section 1(4) as circumstances which are causing or likely to cause

• Serious injury or illness (including mental illness)
• Serious harm to the environment
• Serious harm to property
• Worsening of any of the above
• Death

Causing Nuisance or Disturbance on NHS Premises

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

Section 119(1) of the Criminal Justice and Immigration Act 2008 applies only to NHS premises in England.

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:

• Refuse without reasonable excuse to leave the NHS premises when asked to do so by a constable or staff member; and
• Not be on NHS premises for the purpose of obtaining medical advice, treatment or care for him or herself.

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.

Further guidance on Binding Over orders can be found elsewhere on this Legal Guidance.

Evidential Considerations

Identification

Public disorder is likely to be chaotic and can 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 premeditation.

When dealing with incidents which are believed to be planned and coordinated outbreaks of serious public disorder, 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.

Further more detailed guidance on identification, including the procedures to be followed where a witness who was not present identifies someone from seeing them on CCTV, can be found in the chapter on Identification elsewhere in this Legal Guidance.

Self defence

The law of self-defence is applicable to Public Order Offences. If once the issue is raised the evidence cannot disprove that the defendant’s conduct was reasonable in defence of themselves or another then they will be entitled to be acquitted, just as they would for assault.

See also, R v Rothwell and Barton (1993) Crim L R 626 and section 5(3)(c) of the Public Order Act.