Public Order Act 1986, S. 5: Requirement That Behaviour Be Witnessed
| Author | Chris Newman |
| DOI | 10.1350/jcla.69.2.101.63521 |
| Published date | 01 April 2005 |
| Date | 01 April 2005 |
| Subject Matter | Divisional Court |
Had he not already been under arrest, then a failure to comply with
s. 28(3) could have led to a claim for damages and may have involved a
breach of Article 5 of the European Convention. The police can only do
what is practicable (DPP v Hawkins (1989) 88 Cr App R 166) and they
had informed him of his arrest for breach of the peace as soon as his own
conduct permitted this. This was the extent of their duty under s. 28(3)
at that point.
The case illustrates the extent of police powers to enter and search
premises. Once it had been established that a child was potentially in
danger, they had a duty to intervene which overrode any private prop-
erty rights the appellant might have sought to rely upon. In these
circumstances the welfare of the child had to be the officers’ prime
consideration.
Alan Davenport
Public Order Act 1986, s. 5: Requirement that Behaviour
be Witnessed
Holloway v DPP [2004] All ER (D) 278 (Oct); [2004] EWHC 2621
On 7 May 2003, the appellant was arrested in woods overlooking a
comprehensive school playing field. He had, in his possession, a digital
video camera and tripod. Upon examining the video camera, the police
found images of the appellant, naked, with the schoolchildren in the
background playing sport. The appellant was charged with insulting
behaviour contrary to s. 5 of the Public Order Act 1986. Section 5(1)(a)
of the 1986 Act provides that a ‘person is guilty of an offence if he uses
threatening, abusive or insulting . . . behaviour, or disorderly behaviour
. . . within the sight of a person likely to be caused harassment, alarm or
distress thereby’.
At the trial, which occurred at Chester Magistrates’ Court on 30 June
2004, the deputy district judge found that the appellant’s behaviour was
insulting within the meaning of s. 5 of the 1986 Act. The deputy district
judge stated that whilst no one had seen the appellant naked, anyone
could have done so and the appellant must have been aware that he
could have been seen. It would, therefore, have been likely that anyone
seeing the appellant naked would have been caused harassment, alarm
or distress. Moreover, the appellant must have been aware of the likely
effect of his nakedness on others in a public place. Accordingly the
appellant was convicted under s. 5 of the 1986 Act.
The appeal, by way of case stated, posed the question to the Divisional
Court as to whether it was necessary for the conduct actually to be
witnessed by another before the defendant could be convicted and not
merely that the conduct could potentially have been witnessed by
another. The appellant focused upon the wording of s. 5(1) of the 1986
Act ‘within the . . . sight of a person’, and submitted that this wording
called for the requirement that some person should actually have seen
Public Order Act 1986, s. 5: Requirement that Behaviour be Witnessed
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