Section 5 of the Public Order Act 1986

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Harassment, alarm or distress is a statutory offence in England and Wales. It is also a term of art used in sections 4A and 5 of the Public Order Act 1986 (which take their names from this expression).

The offence

The offence is created by section 5 of the Public Order Act 1986. Section 5(1) provides:

"(1) A person is guilty of an offence if he:

(a) uses threatening words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening ,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."

The words "or abusive" were substituted for the words ", abusive or insulting", in both places they occurred, on 1 February 2014.

This offence has the following statutory defences:

(a) The defendant had no reason to believe that there was any person within hearing or sight who was likely to be alarmed or distressed by his action.

(b) The defendant was in a dwelling and had no reason to believe that his behaviour would be seen or heard by any person outside any dwelling.

Police officers

In DPP v Orum 1 WLR 88, 3 All ER 449, 88 Cr App R 261 the Divisional Court confirmed that Police Officers are unable to be victims of section 5 of the Public Order Act 1986 caused by swearing. Police officers are considered to have "tougher skin" as they are expected to deal with vulgar language on a day-to-day basis in line with their job.

Glidewell LJ said:

I find nothing in the context of the Act of 1986 to persuade me that a police officer may not be a person who is caused harassment, alarm or distress by the various kinds of words and conduct to which section 5(1) applies. I would therefore answer the question in the affirmative, that a police officer can be a person likely to be caused harassment and so on. However, that is not to say that the opposite is necessarily the case, namely, it is not to say that every police officer in this situation is to be assumed to be a person who is caused harassment. Very frequently words and behaviour with which police officers will be wearily familiar will have little emotional impact on them save that of boredom. It may well be that, in appropriate circumstances, justices will decide (indeed they might decide in the present case) as a question of fact that the words and behaviour were not likely in all the circumstances to cause harassment, alarm or distress to either of the police officers. That is a question of fact for the justices to be decided in all the circumstances, the time, the place, the nature of the words used, who the police officers are, and so on.

In Southard v DPP EWHC 3449 (Admin), All ER (D) 101, Fulford J. said "I see no basis for the original written argument that this criminal provision is not available when police officers alone are the likely audience or target."

Mode of trial and sentence

The offence created by section 5 is a summary offence. It is punishable with a fine not exceeding level 3 on the standard scale. (£1,000 as of 2009).

Arrest

Sections 5(4) and (5) of the 1986 Act formerly provided a statutory power of arrest (which required a warning to be given beforehand). They were repealed by section 174 of, and Part 2 of Schedule 17 to, the Serious Organised Crime and Police Act 2005. Arrest for this offence is now governed by section 24 of the Police and Criminal Evidence Act 1984 (as substituted by the 2005 Act).

Statistics

There were four to five thousand prosecutions for harassment, alarm or distress brought each year in England and Wales during the 2001–2003 period, with approximately three thousand cases resulting in conviction.