Threatening Behavior and Disorderly

THE CHARGE

The Public Order Act, 1936, under Section 5, creates a summary offence arising from what may be broadly described as a threatening behaviour, punishable on summary conviction, with a fine not exceeding level three on the standard scale. The offence is said to be committed when a person: uses threatening or abusive words or behaviour or disorderly behaviour, or 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. Establishing liability for an offence under this Section requires no proof of any ‘intention’ of the accused nor that any harassment, alarm or distress is caused to any person. Requirement at its lowest requires proof of accused having the awareness of a possibility. Actus reus is established as soon as such act takes place within the hearing or sight of the person ‘likely’ to be caused harassment, alarm or distress thereby. If you are seeking criminology dissertation help, understanding the nuances of legislation such as the Public Order Act, of 1936, is going to be very critical for your research and analysis.

However, the context and the circumstances in which such sentences are made again becomes the determinative factor. Whether the words used are threatening or abusive depends upon manner in which they are used as well as the surrounding context in which they are used. Such is a question of fact, determined by giving words their ordinary meaning. When behaviour can be properly described as ‘disorderly’ is again a question of fact left for determination by the Trial Court. Disorderly behaviour may not necessarily include conduct that is threatening abusive or insulting and it also lacks element of violence, either actual or threatened.

The element of harassment, alarm and distress have been dealt with by the Court in R(R) v DPP where the defendant R aged 12 years having 4 feet 9inches height, was found guilty by the Youth Court for having caused distress to a police officer, by making ‘masturbatory gestures’, however his conviction was quashed by the Divisional Court by holding that although R’s behaviour was anti-social and intended to annoy the police officer, yet it did not cause the police officer any ‘emotional disturbance or upset.’ For an allegation of harassment, demonstrating real emotional disturbance or upset to have been suffered by the victim, is not essential.

D intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting; or D is aware that it may be threatening, abusive or insulting or he intends his behaviour to be, or is aware that it may be disorderly. Lastly, the offence can be committed either in public or private except where both the defendant and the victim are inside a dwelling at the time of the relevant conduct.

PROSECUTION’S CASE

From the above it is clear that the prosecution is required to prove that the words said or the act done by the defendant was within the hearing or sight of person which can also be a policeman and the words or the act was such that it was likely to cause harassment, alarm (to own or another person’s safety) or distress. What is required is that such words or conduct might have been heard or seen or could possibly have been seen or heard by the person who again must be a real and not a hypothetical victim. Collins J. stated in Holloway v DPP that the evidence must be sufficient for the Courts to draw the inference, in light of the criminal standard, that what the defendant was doing was visible to or audible to people who were in the vicinity at the relevant time

DEFENCES AVAILABLE TO MALCOLM

In terms of Section 5(3) of the Public Order Act, 1986, the burden is upon the accused/defendant (D) to prove that: It had no reason to believe that there was any person within sight or hearing who was likely to be caused harassment, alarm or distress; or D was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed would be heard or seen by a person outside that or any other dwelling; or D’s conduct was reasonable.

LEGAL OPINION

In light of the forgoing discussion and the relevant judicial precedents, Malcolm has a strong case in its favour to set himself free of the charges levelled against him under Section 5 of the Public Order Act 1986. The case of Malcolm is such that it falls short of satisfying even the basic ingredients of the offence, under Section 5 of the Public Order Act, 1986 for entailing liability for conviction. To begin with, Malcolm, who was returning home from his play rehearsals at the dramatic society, had worn a jacket and underneath it, a t-shirt bearing a slogan “Kill the pigs” alongside a picture of a police officer being shot. Very unlikely, the said T-shirt got him charged under Section 5.

Malcolm had merely worn the costume which was used by him in his play and there was no reason whatsoever that the T-shirt worn by him under his jacket could possibly be seen by the police officer or any other person for that matter. It was only upon the police officer’s command that Malcolm removed the jacket and the slogan on the T-shirt was seen by the police officer. In such a situation Malcolm could not be expected to have reasonably believed that his T-shirt firstly could be seen by any person and secondly it would cause harassment to anyone including the police officer. Had Malcolm intended to cause harassment, alarm or distress through his T-shirt, he would not have worn the same underneath its jacket where the contents remained hidden. Going by the literal interpretation of the provisions of Section 5(1), firstly, the act must be done and secondly the act so done much be such that it was within the hearing or sight of a person and it was likely to cause harassment, alarm or distress. In the case of Malcolm, no act capable of inviting any liability under Section 5 can be said to have been done as Malcolm had only worn a T-shirt which he used as a costume in his play and that too underneath his jacket which by any widest possibility could not have been seen by any person, even the police officer. Hence

both the elements of ‘actus reus’ as well as ‘mens rea’ are absent in Malcolm’s conduct. Malclom’s case is thus squarely covered by the dictum laid down in Holloway v DPP, and therefore no conviction is likely to follow from the charge under Section 5 of the Public order Act.

THE CHARGE

Section 3 of the Public Order Act, 1986, creates the offence of ‘affray’ punishable with a maximum penalty on indictment of three years’ imprisonment and a fine. A person is held guilty for an offence under this section: if he uses or threatens 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. Where two or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of sub-section (1). For the purposes of this section a threat cannot be made by the use of words alone.

For the offence of Affray, to be said to have been committed there must be some conduct, as mere use of words, however aggressive and frightening the tone of voice be, is not sufficient. It can be committed either in public or in private. Further, there is an involvement of atleast three participants: the person who uses or threatens unlawful violence; the person who is present at the scene and against whom the threat or violence is directed; a person of reasonable firmness who may not actually be present or be likely to be present.

Thus, where the defendant swiped a knife towards a constable, the issue was not whether a person of reasonable firmness who would have been in the constable’s place would have feared for his personal safety but whether any such hypothetical third person who would have been present on the scene and would have seen the defendant’s conduct, would have feared for his own safety. Affray is therefore a public order offence created for the protection of the bystanders.

Conviction for an offence under Section 3 follows upon satisfaction of the following ingredients: “(1) unlawful fighting or unlawful violence used by one or more persons against another or others; or an unlawful display of force by one or more persons without actual violence; (2) in a public place or, if on private premises, in the presence of at least one innocent person who was terrified; and (3) in such a manner that a bystander of reasonably firm character might reasonably expect to be terrified.

Therefore, the identity of the victim and the extent of his injury remains immaterial. For a charge of affray, it need not be proved who did exactly what and to whom. Determination of liability remains a question of objective assessment. What is required to be proved is that the defendant ‘intended’ the prohibited conduct, which in the case of affray is, using or threatening violence or that the defendant was aware that his conduct was violent or may threaten violence. Violence must be such which is unlawful. Where the defendant believed or may have honestly believed that it was necessary to defend himself or others , there will be no unlawful violence.

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LEGAL OPINION

Only upon an apprehension that Malcolm was being mugged, did Alice attempt to hit the police officer P.C. Lyra, and tried to save Malcolm. There is nothing to show that Alice in any way intended to use or threaten violence. Nor was the conduct of Alice such that, a hypothetical bystander would have feared for his own safety. Thus while the element of ‘actus reus’ diminishes by the fact that the conduct was merely to defend Malcolm, the element of ‘mens rea’ is also absent, for there is no unlawful violence. Hence no charge under Section 3 of the Public Order Act, 1986 is likely to sustain against Alice.