Harassment, alarm or distress is an element of a statutory offence in England and Wales, arising from an expression used in sections 4A and 5 of the Public Order Act 1986, which created the offence. The Act was amended in 1994.
The offence
The offence is created by section 5 of the Public Order Act 1986. Section 5 provides: In February 2014 Parliament passed a redaction of the statute which removed the word "insulting" in subsections "a" and "b" following pressure from citizens.. This offence has the following statutory defences:
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 not unable to be victims of section 5 of the Public Order Act 1986 caused by swearing and other abusive/threatening behavior, but this behaviour must be in excess of what the officer is or should be used to. Glidewell LJ said: In EWHC 3449, All ER 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.", although the court acknowledged the tide is slowly turning on such incidents: "Finally, although the court considered that the facts of this case came near to the borderline as to whether the ingredients of the offence were made out, it is clear that they concluded" Holloway v DPP Ref: EWHC 2621 ) also states that a charge relying on the fact that someone "might have, or could have seen" the conduct is insufficient, compared to whether or not anyone actually did. DPP v Harvey EWHC 3992, EWHC B1 upheld an appeal quashing a conviction for a section 5 conviction. The appellant had been searched by two Police Officers and swore at them. Neither officer said they were harassed, alarmed or distressed by the words and could not show how any member of the public was affected. Appeal held.
Clause allows for a defence on the grounds of reasonable behaviour. This interpretation will depend upon case law. In Dehal v Crown Prosecution Service, Mr Justice Moses ruled that in cases involving freedom of expression prosecution unlawful unless it is necessary to preent public disorder: "a criminal prosecution was unlawful as a result of section 3 of the Human Rights Act and Article 10 unless and until it could be established that such a prosecution was necessary in order to prevent public disorder". This case involved an individual placing a sign critical of religious leaders. Case law may go further and revolve around the prevention of violence. In considering another section 5 case, Lord Justice Auld, quoted Redmond-Bate v DPP, "Free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence". However, in Abdul v DPP, Lord Justice Gross, ruled that to some degree such rules were a matter of fact to be handled by lower courts and not a matter for appeal, stating "If the lower courts themselves approached the matter having duly considered all the relevant principles, the appellate courts will – also on established principles, applicable to appellate courts – be disinclined to interfere." noting that in Dehal v CPS the lower court had not considered Article 10 in any way. In a similar case, a defendant who displayed a poster saying "Islam out of Britain" found guilty and denied appeal.
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.
