Public Order Act 1986, S. 5: Lawfulness of Arrest; Police Act 1996, S. 89(2): Resisting Police Constable in the Execution of Duty
| Author | Chris Newman |
| Published date | 01 December 2005 |
| Date | 01 December 2005 |
| DOI | http://doi.org/10.1350/jcla.2005.69.6.460 |
| Subject Matter | Divisional Court |
nor any of the neighbours had been or were likely to be harassed,
alarmed or distressed, therefore at appeal the issue was whether a police
officer could be the ‘victim’ of the behaviour proscribed by s. 5. Glide-
well LJ stated that a police officer could be caused harassment, etc. and
it was a question of fact for the magistrates to decide upon, having
regard to all the circumstances. In the present case, it is clear that merely
having the conduct witnessed and indeed directed at serving police
officers was not fatal to a charge under s. 5.
In deciding that the basic offence of s. 5 was not made out, the justices
then decided not to consider the religiously aggravated elements of the
Crime and Disorder Act 1998. Part II of the 1998 Act introduced racially
aggravated offences which run in parallel to the basic offences of ss 4, 4A
and 5 of the Public Order Act 1986. In this case, the racially aggravated
element of the offence as defined in s. 31(1)(c) sits on top of the basic s. 5
public order offence and provides for greater punishment if the racially
aggravated element is made out. Section 28(1)(b) of the 1998 Act states
that the offence is to be considered racially aggravated if the offence is
motivated (wholly or partly) by hostility towards members of a racial
group based on their membership of that group. It was an apparent
weakness of the 1998 Act that purely religious aggravating factors
would not be considered when deciding whether or not to charge under
s. 31 of the 1998 Act. The events of 11 September 2001 in the USA led
to a rethink of this position as hostility towards the Muslim community
within the UK appeared to grow. The legislative response came by way
of s. 39(6)(c) of the Anti-terrorism, Crime and Security Act 2001 which
amended s. 28(4) of the 1998 Act to include a religious group, meaning
a group of persons defined by religious belief or lack of religious belief.
Given the facts of the present case, it would have fallen squarely within
that definition and it is indeed axiomatic that this is exactly the type
of mischief that legislators had in mind when drafting the 2001
amendments.
Chris Newman
Public Order Act 1986, s. 5: Lawfulness of Arrest; Police
Act 1996, s. 89(2): Resisting Police Constable in the
Execution of Duty
Burrell vCrown Prosecution Service [2005] EWHC 786
On 24 April 2004, the appellant and his partner attended Harrogate
Police Station to act as appropriate adults for his stepson who had been
arrested earlier on. The appellant was in the custody suite speaking with
the custody officer. The discussion between them became fiery and the
The Journal of Criminal Law
460
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