The Public Order Act 1986—-A Résumé
| Author | Hugh Brayne |
| Date | 01 February 1987 |
| Published date | 01 February 1987 |
| DOI | 10.1177/002201838705100110 |
| Subject Matter | Article |
Journal
of
Criminal Law
THE
PUBLIC
ORDER
ACT
1986-A
&SUMC
Hugh
Brayne*
Significant changes
in
public order law have been under discussion
at least since the 1974 disturbances in Red Lion Square. The
Scarman report on that incident (Cmnd 5919) rejected proposals by
the police for changes, principally an advance notice requirement
for processions. One of the first acts of the new Conservative
administration
in
1979 was to issue a Green Paper (Cmnd 9510) on
policing demonstrations: this was partly a response to the public
outcry over the death of Blair Peach at Southall in 1978; it was also a
curious result of the Local Government Act 1972, which required
all local authorities to renew or lose various statutory powers. Many
local bills were introduced containing a requirement to give
advance notice to the police of demonstrations, and these were
opposed by the National Council for Civil Liberties, and other
organisations.
In response to the Green Paper (Cmnd 7891), the Select
Committee on Home Affairs took a considerable volume of
evidence, and reported
in
1980. The report dealt entirely
with
the
question of demonstrations (HC 756). At that time there was not
seen to be any other significant issue.
The Public Order Bill was preceded by a White Paper, “Review
of Public Order Law” (Cmnd 9510). In this, the Government’s
thinking was taken a good deal further than the control of public
demonstrations: the Paper lists Grunwicks, animal rights and
anti-nuclear demonstrations, the miners’ strike and football
violence as reasons for advancing legislation with a broader scope.
Its wishes were facilitated by the coincidental recommendations of
the Law Commission Report H.C. 1983 85 (L.C. 123), for the
codification of the common law offences of riot, affray and other
offences.
The Bill, when first published on November 5,1985, thus drew on
a wide background of discussion on public order matters. It also
included proposals, not aired
in
the White Paper, to deal
with
football violence by giving the courts a new power to exclude certain
Solicitor. Lecturer in Law, NewCa.de upon Tyne Polythecnic.
102
Public
Order
Act
1986
offenders from football matches, together with proposals
to
extend
the scope of crimes intended to stir up racial hatred.
The passage of the Bill through Parliament was one
of
the longest
of
the session; the Royal Assent was received over 12 months later,
on November
7,
1986. By that time, significant changes had been
introduced, not least a new power enabling the police to eject
trespassers and creating an offence
of
refusal to obey, created at
Report stage in the Lords in answer to the so-called hippy convoy.
(Interestingly, it required an amendment to the long title: the
section is itself something
of
a trespasser in the original design
of
the
Bill.) There is
also
a new offence of contaminating goods sold to the
public, or claiming
to
have done
so;
this is in answer
to
the Mars bar
poisoning hoax of 1985. Again, it is something of a trespasser in an
Act dealing with public order.
The Act falls into four parts. Part
I
sets out, in essence, the
proposals of the Law Commission for codification
of
the common
law offences of riot, affray and for reform
of
other.offences
involving violence: however, it goes beyond the Commission’s
recommendations by creating a new offence in section
5
of
causing
“harassment alarm or distress”.
This
new offence occurs where a person (a) uses words or
behaviour which are “threatening abusive or insulting”, or
behaviour which is disorderly, or (b) “displays any writing, sign or
other visible representation which is threatening abusive or
insulting”. The behaviour described must be “within the hearing or
sight
of
a person likely to be caused harassment, alarm or distress.”
It can emanate from a private dwelling, but it is a defence to show
that the accused had no reason to believe it would be heard or seen
outside the dwelling
(s.5(3)(b)).
The offence requires a victim, but there is no requirement that
the victim should be identified or give evidence
of
actual harm or
distress. Thus, the defence will have no opportunity
of
cross-
examining the alleged victim to show that no harm was done. In
fact, the evidence of a police officer that such a person
was
present
will be almost impossible to rebut. (This is not a new situation
however: under the Town Police Clauses Act,
s.37
a vast number of
actions in a public place can amount to an offence if they amount
to
annoyance
of,
infer uliu,
passengers on the street, and there is no
requirement that such passengers give evidence.) In the White
103
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