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Tag Archives: Public Order Act 1986

Grenfell effigy bonfire and Section 4A – a flawed piece of legislation

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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:

  1. 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”.

Read the rest of this entry

Plebs row: Andrew Mitchell can’t necessarily rely on police officers’ thick skins

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So should Andrew Mitchell have been arrested and prosecuted for swearing at (or in the presence of) police outside No 10 Downing Street and allegedly calling them plebs?

Those who would love to see the stuck-up Tory toff (there, I’ve said it, and it’s on the record) doing time for his outbreak of incivility have had some difficulty finding any precedents for the offence of swearing at police officers. London Mayor, Boris Johnson, has certainly said they should be arrested, and one man is said to have been prosecuted for abusing police during the riots under Section 5 of the Public Order Act 1986 on “causing harassment, alarm and distress”.

But riots and the day-to-day hurly burly of a Cabinet minister’s life are two different things. As matters stand, the police are unlikely to arrest  people who abuse them – however irritating the odious oik might be who is doing the abusing.

And this is as it should be. To arrest people who insult the police would be a draconian power, criminalizing most ordinary people who find encounters with the police stressful, whether after a hard day of trying to keep a faltering Government on its feet or because you are young, black and you’ve been stopped and searched for the Nth time this year.

Crucially it has generally been held that the police have pretty thick skins and aren’t going to be moved to strike a man who insults them (as in “conduct likely to breach the peace” – see “Blemishing the peace” below) or feel harassment, alarm and distress – even when insulted by a here today, gone tomorrow member of Cabinet who thinks the world should jump to his every order. After all, most police are likely to hear plenty of this sort of thing – not least in their own canteens.

The case to look at is Harvey v DPP (2011) in which Denzel Harvey was one of several men being searched for cannabis. “Mr Harvey objected and said, ‘Fuck this, man, I ain’t been smoking nothing’. PC Challis told him that if he continued to swear he would be arrested for an offence under section 5 of the Public Order Act 1986. PC Challis searched the appellant but found no drugs, whereupon the appellant said, ‘Told you, you won’t find fuck all’.” Other searches proceeded and names were taken, then the officer “asked the appellant if he had a middle name and the appellant replied, ‘No, I’ve already fucking told you so’. The officer arrested Mr Harvey for the offence under section 5.” He was convicted and fined £50. Read the rest of this entry

UK riots sentencing: will the rioters be home by Christmas?

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As the UK riots wane, a new battleground is opening on the issue of “soft sentences” for the rioters.

“I’m looking to our courts to give the kinds of sentences that will make them quiver and weep in the dock,” declaimed journalist and polemicist Kelvin MacKenzie on Newsnight. In reality, of course, he is ostentatiously setting himself up to be disappointed so he can later fulminate against the lily-livered fops who preside over our criminal courts sending the criminals and thugs home with the lightest of pats on the wrists.

One judge has got his defence in first. District judge Tim Devas told Nottingham magistrates’ court:  “If there are any criticisms of sentences handed down by the courts, if you want anyone to blame, then go and speak to the government. Do not blame the judges or the magistrates who do their jobs professionally and abide by the guidelines set down.”

It’s worth looking at the sentencing guidelines issued to magistrates – if only to massage down Kelvin’s overheated expectation of what the full rigour of the law will entail.

The document notes that since 2008: “For the first time, there is a statutory obligation on every court to have regard to this guideline in a relevant case and to give reasons when imposing a sentence outside the range identified.” As Judge Devas says, magistrates’ courts are bound by the guidelines.

The powers of magistrates’ courts are limited to issuing a range of fines, community sentences and no more than six months’ detention. Generally only half the sentence is served so most rioters will be out by Christmas – by which time, all being well, the shops they helped to trash will have replenished their shelves. The courts can consider a further one third off for guilty pleas. It all adds up to something rather less than quiver-inducing for the average hardened thug or criminal.

For most of the cases arising out of the riots, if magistrates feel their powers of punishment aren’t sufficient they can send the worst offenders for trial or for sentencing before a judge at the crown courts. But there will be no great move to get lengthy crown court proceedings going except in the most serious cases since the court system is already showing the strain with only 1,000 or so arrested. Defence lawyers are likely to advise their clients to plead guilty before magistrates and then pile on the mitigating factors – perhaps variations on: “The prime minister says I’m living in a sick society; what do you expect?”

Riot: “Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot” – Public Order Act 1986 S. 1 (1)

The offence of riot itself is an indictable offence so is heard at the crown court and carries a maximum 10 years. It would be extremely difficult to prosecute and would tie the courts up for long periods. Those involved in the riots are more likely to be dealt with for lesser offences that can be heard in magistrates’ courts, for example “violent disorder” (Public Order Act S. 2), which involves three or more people. It carries a maximum six-month sentence on summary conviction (ie at the magistrates’ court) in “rare cases involving minor violence or threats of violence leading to no or minor injury, with few people involved and no weapon or missiles”. Otherwise it is up to five years on indictment.

Many of the “looting” cases will be dealt with as “burglary of a building other than a dwelling” in which:

“having entered any building or part of a building as a trespasser he [the offender] steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm” – Theft Act 1968, S 9  (1) (b).

The guideline says: “The starting points and sentencing ranges in this guideline are based on the assumption that the offender was motivated by greed or a desire to live beyond his or her means.” The papers are packed and the blogosphere bulging with attempts to explain the “motivations” of the riots, but as far as magistrates are concerned, greed is good enough.

The loss to the owner and the impact of that loss is more important than the value of the items. “This may be particularly important where the value of the loss is high in proportion to the victim’s financial circumstances even though relatively low in absolute terms.” This leaves open the possibility of coming down harder on those people who have destroyed the livelihoods of small shopkeepers than those who looted JD Sports or Swarovski – unless a level of criminal professionalism was shown in stealing easily saleable items.

Furthermore “harm in the form of public concern or erosion of public confidence” should weigh against the offender – certainly a big issue in the riots.

Offenders may, however, appeal to the magistrates’ kindlier side since “the fact that an offence has been committed in desperation or need arising from particular hardship may count as personal mitigation in exceptional circumstances”. So those found carrying out big bags of rice or their weekly shopping at Iceland might offer “desperation” as a mitigating factor.

The guidelines then suggest a medium level community order as a starting point for items worth up to £2,000 or 18 weeks’ custody for more expensive items up to £20,000. Anything more and it’s straight to the crown court where 10 years would be the maximum prison sentence.

There will be a number of arsonists caught, one hopes, and arson is one of those legendary capital crimes (especially in HM dockyards). Even now it can carry a penalty of life imprisonment when tried at crown court, especially when life is put at risk – but in less serious cases it can also be tried by magistrates and hence hit the six-month ceiling. Moderate damage for a first offender? You’re looking at between 12 weeks to the full six months in custody.

Damage to emergency equipment or “public amenity” could push up the penalty – but if the perpetrator was simply being reckless, that will pull it down. If affray, violent disorder and putting people in fear were involved – all very likely in these cases – then it will be off to crown court with life sentences on the cards.

There is no doubt that the public will be out for blood in the next few months. The few examples here show how far magistrates’ courts are limited in what they can do – and how complex working out sentences is. And that’s without even taking account of the fact that many cases will be heard in juvenile courts with their own levels of complexity – and to some, inadequate punishment.

The disappointment that Kelvin MacKenzie and his followers will doubtless feel as the sentences come through may well be a springboard for reassessment of the sentencing structure. But what is driving government policy now is deficit reduction. UK prime minister David Cameron is standing firm on money-saving police cutbacks. Although we hear little of Ken Clarke’s “50% off for a guilty plea” proposals any more, it seems unlikely that the government will do anything that involves costly increases in prison stays for rioters or any other criminals.

A reassessment of the issues in this posting in the light of more recent events is here

The Guardian is publishing constantly updated data on the court cases and sentences here 

An analysis of how the guidelines were used to arrive at a six-month sentence for stealing a bottle of water is here

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