4A Public Order Act 1986- Intentional harassment, alarm or distress

Introduction

The offence of s4A Public Order Act of intentional harassment, alarm or distress is subtly different to that of straightforward s4 Public Order Act Threatening words and behaviour. There is a complementary article on the s4 offence here where some of the basic issues relating to Public Order Act offences are examined. In this article specialist Criminal defence Barrister Quentin Hunt examines the s4A offence.

What is Intentional harassment alarm or distress?

The offence of intentional harassment, alarm or distress under s4A of the Public Order Act 1986 is actually surprisingly hard for prosecutors to establish. A skilled defence advocate can often pick apart the prosecution case and undermine one or more of the ‘elements’ that the prosecution must prove in order to gain in a conviction. These are:

- That a defendant must intend to cause a person harassment, alarm or distress
- That with the above intention the defendant uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
- displays any writing, sign or other visible representation which is threatening, abusive or insulting
- That the other person was thereby caused harassment, alarm or distress.

The Courts have held that the word distress could be defined by its context; “harassment, alarm or distress” have been held to be relatively strong words. In R. (R.) v DPP [2006] EWHC 1375 (Admin) the Court held that “distress” requires genuine emotional upset or disturbance. While this need not be very serious, it should not be trivialised. Later decisions have held that there was no need for the act to be likely to lead to some kind of real emotional disturbance or upset. “Harassment” has been held to be able to be experienced without any real emotional disturbance or upset.

The offence may be committed in a public place or a private place, but no offence is committed where the actions are undertaken by a defendant inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.

In order for a defendant to be proved to be guilty the offending behaviour must actually have occurred within the sight or hearing of someone likely to be caused harassment, alarm or distress; the offence cannot be proved on the basis that someone might or possibly could have heard or seen the behaviour. However, where a person posts an image on a publically accessible website with the necessary intent, can amount to a s4A offence. The fact that the other person does not see it until shown it by someone else does not matter nor does it matter that the image was removed from the site before it was shown to the person who was caused the harassment, alarm or distress. (S. v CPS [2008] EWHC 438 (Admin); [2008] A.C.D. 46, DC).

Although the offences created by s4A can only be tried in the Magistrates Court there are racially or religiously aggravated versions of the offences under s31 of the Crime and Disorder Act 1998 which are more serious and can be tried in either the Magistrates Court or the Crown Court.

Section 4A Public Order Act Defences

A multitude of defences are available to a s4A allegation. Often it is advisable to seek specialist legal advice to see what defence or defences may apply to any specific case. I outline here some of the most commonly used defences. Under s4A subsection (3) two statutory defences are enacted these are:

- If a defendant was inside a dwelling and had no reason to believe that his actions would be heard or seen by a person outside that or any other dwelling
- That his conduct was reasonable.

In addition, normal defences to Public Order Act matters such as this can be used and these include:

- That there was a lack of ‘intent’ to commit the offence
- That the alleged actions did not take place or were different to that which is alleged by the prosecution
- That the actions/words were not threatening, abusive or insulting
- That the actions/words did not cause harassment alarm or distress
- That the measures taken were necessary for self defence and defence of another or property.
- That the actions/words were an exercise of freedom of speech defence

A recent examples of the freedom of speech defence was in Campaign Against Antisemitism v DPP [2019] EWHC 9 (Admin), DC, where the appeal court found that words used at a peaceful, protest event may have been intemperate and offensive, but that did not mean that they were abusive. The words fell within the right to freedom of expression, protected by art.10 of the European Convention on Human Rights.

A relevant example I have dealt with involved action and words of a husband towards his wife in the context of a messy divorce proceedings. In the case we were able to prove that the words used were part of a volatile relationship where equal types of language were used by both sides. In the context it was possible to demonstrate that this was not unusual and that the words used by the husband were unlikely to have caused the wife harassment, alarm or distress as they were part of a mutual pattern of behaviour that stretched back for a number of years. It was also said that as this was part of a normal pattern of dialogue in a relationship the husband had no specific intent to cause this offence as opposed to trying to get his point across in respect of the issues in the divorce proceedings. As a result the husband was acquitted of all charges.

Section 4A Public Order Act Sentence

Any allegation of an offence under s4A should be taken seriously as the maximum sentence for such an offence is 6 months imprisonment.

The Sentencing Council offers guidelines to Courts for sentencing in certain cases. Such a guideline is in existence for s.4A and can be found here. This applies to all offenders aged 18 and older who are sentenced on or after 1st January 2020. For guidance as to the applicability of the sentencing guideline and what sentence a person would be likely to receive upon conviction you should seek specialist legal advice.

If you are accused of a Public Order Act offence it is vital that you seek specialist, expert legal representation as soon as possible. Quentin Hunt is a Criminal Defence Barrister who has specialised in Public Order Act offences for over 20 years. He accepts instructions directly from members of the public and is available to contact for a free, no obligation conversation about any case.