The offence is created by section 5 of the Public Order Act 1986. Section 5(1) provides: :"(1) A person is guilty of an offence if he/she: ::(a) uses threatening or abusive words or behaviour, or disorderly behaviour, or ::(b) displays any writing, sign or other visible representation which is threatening or abusive, :within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby." In February 2014
Parliament passed a redaction of the
statute which removed the word "insulting" in subsections "a" and "b" following pressure from citizens. This offence has the following statutory defences: :(a) The
defendant had no reason to believe that there was any person within hearing or sight who was likely to be alarmed or distressed by his action. :(b) The defendant was in a
dwelling and had no reason to believe that his behaviour would be seen or heard by any person outside any dwelling. :(c) The conduct was reasonable.
Police officers In
DPP v Orum [1989] 1 WLR 88, [1988] 3
All ER 449, [1989] 88 Cr App R 261 the Divisional Court confirmed that police officers are not unable to be victims of section 5 of the Public Order Act 1986 caused by swearing and other abusive/threatening behaviour, but this behaviour must be in excess of what the officer is or should be used to. Glidewell LJ said: In
Southard v DPP [2006] EWHC 3449 (Admin), [2006] All ER (D) 101,
Fulford J. said "I see no basis for the original written argument that this criminal provision is not available when police officers alone are the likely audience or target.", although the court acknowledged the tide is slowly turning on such incidents:
"Finally, although the court considered that the facts of this case came near to the borderline as to whether the ingredients of the offence were made out, it is clear that they concluded" Holloway v DPP (Admn 21 Oct 2004) Ref: [2004] EWHC 2621 (Admin)) also states that a charge relying on the fact that someone "might have, or could have seen" the conduct is insufficient, compared to whether or not anyone actually did. DPP v Harvey (17 Nov 2011) [2011] EWHC 3992 (Admin), [2011] EWHC B1 (Admin) upheld an appeal quashing a conviction for a section 5 offence. The appellant had been searched by two Police Officers and swore at them. Neither officer said they were harassed, alarmed or distressed by the words and could not show how any member of the public was affected. Appeal held.
Limits: Freedom of speech Clause (c) allows for a defence on the grounds of reasonable behaviour. This interpretation will depend upon
case law. In
Dehal v Crown Prosecution Service, Mr Justice Moses ruled that in cases involving freedom of expression, prosecution is unlawful unless it is necessary to prevent public disorder: "a criminal prosecution was unlawful as a result of section 3 of the Human Rights Act and Article 10 unless and until it could be established that such a prosecution was necessary in order to prevent public disorder". This case involved an individual placing a sign critical of religious leaders. Case law may go further and revolve around the prevention of violence. In considering another section 5 case, Lord Justice Auld quoted
Redmond-Bate v DPP (a case involving breach of the peace), "Free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence". However, in
Abdul v DPP, Lord Justice Gross ruled that to some degree such rules were a matter of fact to be handled by lower courts and not a matter for appeal, stating "If the lower courts themselves approached the matter having duly considered all the relevant principles, the appellate courts will – also on established principles, applicable to appellate courts – be disinclined to interfere." noting that in
Dehal v CPS the lower court had not considered Article 10 in any way. In a similar case, a defendant who displayed a poster saying "Islam out of Britain" was found guilty and denied appeal. ==Mode of trial and sentence==