Was a criminal offence committed when a group of friends took it into their head to mock up a Grenfell Tower cardboard effigy and set it ablaze on Bonfire Night? The short answer would seem to be … it’s complex – and that the law six of them have been arrested on is deeply flawed and potentially oppressive.
The question for the police is: did their action amount to causing intentional harassment, alarm or distress according to Section 4A of the Public Order Act 1986? This says:
- A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
thereby causing that or another person harassment, alarm or distress.
The cardboard Grenfell Tower is a “visible representation” and setting it alight is “behaviour”. But the issue is the motivation of those doing it. Leaving aside the social media issue, the burning of the effigy was in a private garden – possibly among like-minded friends. Can the police show intention to cause harassment, alarm or distress to a particularly defined group? Can they also show that such harm was, in fact, caused?
The Section 4A provision of the Act that the police are using is something of a confused botch-up. Significant parts of the Public Order Act are very much about public, open places or public buildings. It is about avoiding public disorder: riot, affray, provocation of violence; that sort of thing.
But Section 4A was introduced in the Criminal Justice and Public Order Act 1994, at a time when a new sense of public threat was abroad under a tough new Home Secretary, Michael Howard (the 1994 Act also cracks down on trespassers and squatters). The political focus was on victims and toughening up the law dealing with the remarkably subjective harms of “harassment, alarm or distress” (wording also in Section 5, and controversially so; see Harvey v DPP 2011; see here) but not explicitly in a there-and-then public space.
In contrast, Section 4 (part of the original Act) on provocation uses similar wording, criminalising threatening, abusive and insulting words and behaviour and visible representations etc but only insofar as there is “intent to cause that person [the victim] to believe that immediate unlawful violence will be used against him or another by any person”.
Furthermore, the 1986 Act has wording along the lines that the words, behaviour etc should be “within sight and sound” of the aggrieved party (see Section 5). This is missing from Section 4A. One judge opined that:
“It may well be that by the time the Public Order Act was amended in 1994, the omission of the ‘sight and sound’ requirement, was conditioned by an appreciation of the problems created by the posting of offensive material on websites, although both statutes contain similar provisions about display by a person inside a dwelling and the effect on a person inside that or another dwelling [ie that there is no offence in these cases].” Maurice Kay LJ: S v Crown Prosecution Service  EWHC 438 (Admin)
This can’t be true. The World Wide Web was barely up and running in 1993 when the Section 4A legislation was being considered, and Facebook would not be seen for 10 years or more. So what was this bit of legislation targeted at? The effect is that the bar was moved considerably to cover behaviour short of on-site violence or the threat of violence or conduct that might spark violence. It was a decisive move towards the anti-social behaviour agenda.
It even allows police to apprise alleged/potential victims of material they (the victims) have not seen – and then (presumably) ascertain the level of harassment, alarm or distress the victim is feeling. This is exactly what happened in S v CPS (see note at the end of this piece). The police can thereby become bizarrely complicit in the offence, ensuring the third element (“thereby causing etc”) is arrived at even as they are investigating it.
Section 4A is therefore a rather odd mixture: it doesn’t (as some people seem to be demanding it should) protect against hurt feelings of people in general or a particular group of people; it does protect against subjective harms including the relative minor feeling of “distress” (in contrast, say, to “fear”); and yet it remains in the context of dealing with offending with a public order, public place background.
So, the 1994 section retains the exception seen in other 1986 sections (see Ss 4 and 5), that there is no offence if the allegedly criminal act took place in a dwelling, or if the aggrieved party is in the same or another dwelling.
“… no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling”.
The fundamental assumption is that Section 4A is, like other parts of the Act, a public order offence, not a private order offence.
All this makes the Grenfell bonfire case rather awkward, especially under the huge political and public pressure that something must be done against such “utterly unacceptable” and disrespectful behaviour (Theresa May). Which is why the police are having to put in so much time on a repellently offensive yet relatively minor piece of misbehaviour.
If the police can establish intent, they would have to see if anyone attending the bonfire (in what looks like a small garden) might have been targets of the offensive behaviour (who would count as such a person?); or what about the neighbours? Could they count as targets? If they were in their homes looking out of their windows, are the perpetrators off the hook under the “dwelling” provision?
If the neighbours were in their gardens, did the perpetrators know or expect them to be craning their necks over fences to see the mock Grenfell Tower go up in flames and therefore be alarmed, harassed or distressed by it? What of the release of the video on social media? Did the person who uploaded it to WhatsApp intend to cause alarm, harassment or distress to a target audience. Similarly with the person who put it on Facebook: did they assume it would be seen by survivors of the fire (if they were the target)?
Are there other potential targets – most decent people who have only good feelings towards the Grenfell victims who saw and were distressed by the video? Can you feel harassed, alarmed or distressed at second hand? Can the police go around with mobiles showing the video to people, perhaps people they feel might have been victims if they had seen it, to find out if they feel distress? (If so, they had better not show it to them in a domestic setting, of course.)
If the video was uploaded while in a “dwelling”, is that OK? Or is the internet deemed to be “outside” per se? Does the Communications Act 2003 Section 127 kick in instead? Can the whole thing be deemed an expression of opinion, protected by the European Convention on Human Rights?
If this case is dropped, there will doubtless be outrage. But if it is pursued, would it really be worth it?
• In the event one person, Paul Bussetti, was charged under the Communications Act 2003, Section 127 with sending “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”.
See also: Twitter joke trial and Lord Judge which looks at the Communications Act – and suggests we don’t really have much clarity on offensive posts there, either.
A Daily Mail piece looked at the legal issues, and published the video in full, which might be a little concerning since Section 127 does not require malicious intent for publication to be deemed unlawful – though there is an exemption for a “a programme service” ie a broadcast. Could the Mail claim it was a “broadcast” even though the paper and its web site are not regulated as broadcasters?
Thanks, as ever, to bailii.org for cases.
A note on the video
The words below are based on viewing the video on the Independent website (which may have been edited from the original) and another fuller version. Although the video is captioned in the Independent: “Footage … with brown faces at the windows,” it seems that four or five out of probably seven paper dolls that are seen (including two on the front of the effigy and another on the side that is seen in close-up) are white faces (ie pink). One at a window looks clearly brown and others seem dark but are silhouetted by the flames inside the box (one possibly in a burqa), so it is difficult to tell. One of two hanging from the side has been said to be in a burqa, but it’s not clear from the video.
Another legal complexity to the case is whether the comments by the audience watching the effigy burning become part of the offence. And are those people therefore potential offenders (assuming they intended their words to cause harassment, alarm or distress). Those watching the bonfire made these comments (plus a few others barely audible). They are men except where indicated:
Female voice: “You take it. I don’t want to [have anything to do with it?]
“They all want to take pictures of it”
“You’re part of this.”
Female voice: “I made the people”
“You made all the burning people”
(As it’s nearly dropped) “Now that would have been funny”
“That is so bad” (presumably a comment on making the effigy, but not necessarily a criticism).
“Let’s video it then, mate” (Laughter)
“It’ll burn my nuts”
“We are coming to get you” (ie as if a fireman).
“Can [we/they] go and rob the bottom flats.”
“Look at it hanging there like that” (about one of perhaps two paper dolls attached so they were hanging out of windows; one has been said to portray a woman in a burqa).
“Agh, help me, help me!”
“Didn’t it start from the tenth floor, though?” (ie a comment that the effigy is being burned from the small basket bonfire below). Reply: “I should have started it upside down.”
“Jump out the window!”
“Don’t worry, stay in your flats!”
“Some people got some bad taste,” (said ironically, not as criticism).
(Someone counts to seven, possibly the number of of people with “bad taste”)
“Woo, woo. Here, they’re coming, the fire brigade”
“Very late. You need more than one”
“That little ninja’s [woman in burqa] getting it at the minute”
“This is what you get for not paying your rent!”
“It’ll go everywhere now” (meaning the effigy as the flames take hold).
“He’s lost it!” (As the effigy is engulfed in flame and falls over).
“Not your best idea, Mark”
“Get a stick; get a stick” [to deal with the burning remnants now on the ground]
A note on the 2008 S v Crown Prosecution Service case
This involved a post on a website that the alleged victim did not see until the police showed him a hard copy of it – after it had already been taken down. Nevertheless, the District Judge at first instance said: “As a result of seeing the photograph, coupled with his knowledge that it had in the past been displayed to the public on the internet, the complainant suffered harassment, alarm, or distress.” Kay LJ in the High Court appeal agreed with the District Judge.
Mr Justice Walker also agreed, adding: “Suppose that the police, rather than showing the complainant an image which had been posted on the World Wide Web, simply told that person details of what had happened. If the posting of the material on the World Wide Web had been done by the defendant with intent to cause a person harassment, alarm or distress, and it did indeed cause harassment, alarm or distress, albeit only because the person in question was informed by another, I see no objection for that reason only to the defendant being found guilty of the offence.”
This suggests that police can decide in advance that a crime may have occurred and then act to ensure that it actually “occurred” – albeit after the event – by ensuring the victim witnesses or is apprised of the offensive material.