Harassment, alarm or distress

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

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

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

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

(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.

(3) It is a defence for the accused to prove—

(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or

(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(c) that his conduct was reasonable.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(1) A person is guilty of riot only if he intends to use violence or is aware that his conduct may be violent.

(2) A person is guilty of violent disorder or affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence.

(3) A person is guilty of an offence under section 4 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting.

(4) A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening or abusive, or is aware that it may be threatening or abusive or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.

(5) For the purposes of this section a person whose awareness is impaired by intoxication shall be taken to be aware of that of which he would be aware if not intoxicated, unless he shows either that his intoxication was not self-induced or that it was caused solely by the taking or administration of a substance in the course of medical treatment.

(6) In subsection (5) “intoxication” means any intoxication, whether caused by drink, drugs or other means, or by a combination of means.

(7) Subsections (1) and (2) do not affect the determination for the purposes of riot or violent disorder of the number of persons who use or threaten violence.

Triable summarily

Maximum: Level 3 fine

See Table below for the elements of this offence.

With effect from 1 February 2014, section 5 no longer includes words, behaviour, or displays which are simply “insulting”. The effect of the amendment is that the “insulting” limb is also removed from the racially or religiously aggravated version of the section 5 Public Order Act offence (i.e. the offence contrary to section 31(1)(c) Crime and Disorder Act 1998).

Prosecutors will need to consider carefully whether behaviour amounts to the commission of the section 5 offence. In the majority of cases, prosecutors are likely to find that behaviour that can be described as insulting can also be described as abusive.

See also guidance that has been published by the College of Policing.

Whether behaviour can be properly categorised as disorderly is a question of fact. Disorderly behaviour does not require any element of violence, actual or threatened; and it includes conduct that is not necessarily threatening or abusive. It is not necessary to prove any feeling of insecurity, in an apprehensive sense, on the part of a member of the public (Chambers and Edwards v DPP [1995] Crim LR 896). The following types of conduct are (non-exhaustive) examples, which are capable of amounting to disorderly behaviour:

Causing a disturbance in a residential area or common part of a block of flats;

Persistently shouting abuse or obscenities at passers-by;

Pestering people waiting to catch public transport or otherwise waiting in a queue;

Rowdy behaviour in a street late at night which might alarm residents or passers-by; be Causing a disturbance in a shopping precinct or other area to which the public have access or might otherwise gather;

Section 5 should be used in cases which amount to less serious incidents of anti-social behaviour. Where violence has been used, it is not normally appropriate to charge an offence under section 5, unless the physical behaviour amounts merely to pushing or undirected lashing out of a type likely to cause no more than a glancing blow, minor bruising or grazing. Such conduct may also be classified as disorderly and suitable for a charge under section 91 CJA 1967, if the suspect was drunk.

There must be a person within the sight or hearing of the suspect who is likely to be caused harassment, alarm or distress by the conduct in question. A police officer may be such a person, but this is a question of fact to be decided in each case by the magistrates. In determining this, the magistrates may take into account the familiarity which police officers have with the words and conduct typically seen in incidents of disorderly conduct. (DPP v Orum (1989) Cr App R 261.)

Section 5 is a summary only offence and the maximum penalty is a level 3 fine.

Where there is reliable evidence that the accused was drunk in a public place at the time of the alleged offence to the extent that the accused had lost the power of self-control, a charge of drunk and disorderly behaviour should be preferred where otherwise a section 5 charge would be appropriate.