Threatening words or behaviour- section 4 Public order Act 1986.
Section 4 of the Public Order Act 1986 establishes an offence of fear of provocation of violence by threatening words or behaviour. The offence is slightly different to the offence under s4A which is intentional harassment, alarm or distress- this is dealt with in a separate article here.
The last set of statistics published on the rate of offending for this offence was published in 2017 and showed that convictions for section 4 offences were declining from 9,500 offenders sentenced in 2006 to 6,500 offenders sentenced in 2016.
In this article Public Order Offences lawyer Quentin Hunt looks at the s4 offence and examines what has to be proven by the prosecution and how such cases can be successfully defended.
What is “threatening words or behaviour”?
The offence of threatening Words or behaviour causing a fear of provocation of violence under s4 of the Public Order Act 1986 contains a number of ‘elements’ that the prosecution must prove in order to gain in a conviction. These are:
- That a person uses towards another person threatening, abusive or insulting words or behaviour
- Or that a person distributes or displays to another person any writing, sign or other visible representation which is threatening abusive or insulting
- That the person has intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another
This offence may be committed in both a private place and a public place BUT subsection 2 specifically states that the offence cannot be committed where both the defendant and the person threatened are in a dwelling house.
The offence is known as ‘summary only’ which means that it only be tried in the Magistrates Court.
What is the definition of Insulting, Threatening or Abusive?
The definition of ‘Insulting’, ‘threatening’ and ‘abusive’ is not a question of law at all, but a question of fact. The meaning of an ordinary word of the English language, such as “insulting” should not be legally defined beyond its normal meaning (Brutus v Cozens  A.C. 854). Therefore, it is important in considering any case whether the conduct complained about actually amounted to the definition of the type of offence alleged. Often conduct which may be unpleasant does not cross the threshold to become either insulting, threatening or abusive.
The dictionary definition of the various terms are below-
Insulting- Adjective- Something that is insulting is rude or offensive.
Threatening- adjective [usually ADJECTIVE noun]- You can describe someone's behaviour as threatening when you think that they are trying to harm you.
Abusive- adjective- Abusive language is extremely rude and insulting.
It should also be noted that a s4 offence requires what lawyers call a ‘specific intent’. This means that the prosecution has to prove that the defendant has an intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person. If the conduct is for a different purpose, for example it is borne out of frustration or is done in an effort to provoke or amuse then the offence is not made out (Hughes v DPP  EWHC 606 (Admin); 176 J.P. 237, DC). This is often the case in ‘neighbour dispute’ cases of this sort where it is often successfully argued that the conduct in question was designed to achieve a specific aim such as to dissuade the neighbour from certain conduct but was not designed to make the complainant believe that immediate violence would be used against them.
Immediate unlawful violence
‘Immediate’ under the terms of the Public Order Act means that there must be proximity in time and in causation. So as far as the actions are concerned it must be likely that violence would result within a relatively short period of time and without any other intervening occurrence. (Horseferry Road Magistrates’ Court, ex p. Siadatan  1 Q.B. 280; (1991) 92 Cr. App. R. 257, DC) For example I recently defended an individual who was accused of a s4 relating to threats that were said to have been delivered through a locked door. I submitted to the Court that any unlawful violence would not have been immediate due to the fact that the defendant would have to have broken down the locked door before he could have inflicted any violence and that this would be a significant intervening event. My client was acquitted of all charges.
Unlawful violence means that the violence in question must be unlawful. This means that if the violence was carried out in lawful self-defence or in defence of another then it would not be unlawful and the offence would not be made out. The burden of disproving a defence of self-defence will be upon the prosecution once it has been raised as an issue.
Can s4 public order Act be committed inside a Dwelling house?
Under s5(2) of the Public Order Act 1986 if both the defendant and the alleged victim are inside a dwelling house then the offence cannot be made out. The definition of a dwelling is contained within s8 of the Public Order Act 1986 and is as follows:
“dwelling” means any structure or part of a structure occupied as a person's home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose “structure” includes a tent, caravan, vehicle, vessel or other temporary or movable structure;
The question of the interpretation of s8 was addressed in DPP v D  EWHC 2244 (Admin). In s.8, "dwelling" was defined as being, "any structure or part of a structure occupied as a person's home or as other living accommodation ...". Accordingly, a "dwelling" has to be a "structure" or "part of a structure". The term "structure" carried its ordinary English meaning. The most appropriate definition was that in the Oxford English Dictionary 2nd ed, namely " ... [that] which is built or constructed: a. A building or edifice of any kind ...". A part of a building might rightly be deemed as "part of a structure", however, a garden would not be classed as a "structure or part of a structure" inhabited by someone as their "home" or "other living accommodation"..
Threatening words and behaviour - sentencing
If convicted of the offence of using threatening words and behaviour, an offender may be sentenced to a maximum period of imprisonment of six months.
Sentencing Council Statistics show that 14% of offenders are sentenced to immediate custody for this offence and that 35% of offenders received community sentences and 23% received fines. The average length of a custodial sentence was two months imprisonment.
The offence is subject to guidance from the Sentencing Council by way of Guidelines for the offence. If you are accused of such an offence and are curious as to what a likely sentence would be you should seek specialist legal advice.
As can be seen above, an allegation of a s4 public order Act 1986 offence can be factually and legally complex. There are many defences that can be utilised and it is imperative that if someone is charged with this offence they receive specialist representation. Quentin Hunt is a Criminal Barrister and expert in Public Order offences. He is capable of accepting instructions directly from members of the public. If you are facing an allegation of this sort you may contact Quentin for a free no obligation conversation about your case.