Public Order – New Sentencing Guidelines
New sentencing guidelines for public order offences come in to force for adults sentenced on or after 1 January 2020.
In August 2008, the Sentencing Guidelines Council published Magistrates’ Court Sentencing Guidelines (MCSG). The guidelines covered a number of public order offences; the offence of affray and summary offences relating to threatening and disorderly behaviour provided for by section 4, section 4A and section 5 of the Public Order Act 1986. There was also a brief reference to violent disorder offences which may be sentenced in magistrates’ courts. This guidance did not include guidelines for sentencing these offences in the Crown Court. Nor did it include guidance on sentencing the public order offences of riot, or offences relating to stirring up racial or religious hatred and hatred based on sexual orientation.
The offences covered by the public order guideline are relatively high in volume. There were 18,600 offenders sentenced for the public order offences covered by the guideline in 2018. The volume of some offences is however relatively low. In relation to the offence of riot only 30 offenders have been sentenced between 2008 and 2018. Around 300 each year are sentenced for violent disorder, and 2400 for affray. The rest being sentenced for the lesser offences.
Will the new guideline affect sentence length?
For the offences of riot, violent disorder and affray, it is suggested that sentence length will not be affected.
For threatening behaviour and disorderly behaviour with intent, there have been some reductions to sentencing ranges and starting points for the different levels of offence seriousness, compared to the MCSG. It is possible that the decrease to sentence levels in the guideline could lead to a decrease in sentencing severity for these offences, whereby some individuals who currently receive a custodial sentence may now receive a community order. However, it is also possible that much of the decrease in sentencing severity could come from offenders currently receiving suspended sentence orders now receiving community orders. Therefore there is an upper estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and a lower estimate that the guideline could lead to a reduction in the requirement for up to 30 prison places per year and a small increase in the use of community orders.
Racially aggravated offences
For racially or religiously aggravated threatening behaviour and racially or religiously aggravated disorderly behaviour with intent, sentencers are first asked to sentence the basic offence. Once that is done, they should increase the sentence considering the level of racial or religious aggravation involved. This ‘uplift’ approach reflects Court of Appeal guidance on how aggravated offences should be sentenced. It also aligns with current practice in relation to assessing the level of aggravation present in offences. This is the same process as used in the Council’s Arson and Criminal Damage guideline. That consultation stage research found that there was a risk that the guideline could result in slightly higher sentences. It is therefore possible that the guideline could cause an increase to sentencing severity.
However, some of the starting points and sentence ranges for the basic offence are lower than under the current guideline. This could offset these potential increases. Therefore there is a lower estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and an upper estimate that the guideline could lead to a requirement for up to 40 additional prison places per year and a small decrease in the use of community orders.
Non-imprisonable offences
For the offences of disorderly behaviour and racially or religiously aggravated disorderly behaviour, the maximum sentence is a fine. Therefore the guideline will not have an impact on prison and probation resources. For the offence of disorderly behaviour, the guideline introduces a new higher category of offending. This has a higher level of fine than in the existing MCSG guidance (a Band C fine). The guideline may therefore increase fine values for this offence. Also, because a fine is included for all levels of offending for racially or religiously aggravated disorderly behaviour – whereas data suggests that around 12 per cent of offenders sentenced for this offence received an absolute or conditional discharge in 2018 (after any reduction for guilty plea) – it is also possible that the guideline could increase the number of offenders sentenced to a fine for this offence.
As ever, our advocates will be vigilant to ensure full adherence to the guideline and act to prevent any ‘sentence creep’ which is something that we have observed with other guidelines.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
(Image credit: Tomasz Iwaniec; https://creativecommons.org/licenses/by/2.0/ )
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Policing Public Protest – A Question of Balance
Environmental protests across London in recent days have caused massive disruption and are set to spread across other towns and cities over the coming weeks and months.
Public protest has always been a legitimate and important part of the democratic process and is enshrined in law. But, how do the police balance the right to protest as against the rights of other people to go about their business unimpeded?
Why are people protesting?
Extinction Rebellion has organised the protests; a group concerned about the environmental destruction of our planet.
Frustrated that other attempts to force change in governmental behaviour have changed, they have resorted to a new form of peaceful protest, on its website they claim:
‘Civil disobedience works when it’s peaceful, respectful, disruptive and undertaken en masse. We don’t want to disrupt people, but our Government’s failure over the last 30 years leaves us no choice. If we had functioning democracies, we wouldn’t need to. We’ve tried petitions, marches, letters, reports, papers, meetings, even direct actions; and emissions have continued to rise. Governments prioritise the short term interests of the economic elites, so to get their attention, we have to disrupt the economy. They have left us with no other option.’
In London the protesters blocked major roads and bridges, leading to significant chaos and disruption.
What was the police response?
The Metropolitan Police set out the dilemma in this way:
‘The serious disruption the Extinction Rebellion demonstrations are causing to people in central London and beyond is unacceptable and we completely understand the concern it is causing to those who are disrupted by it.
Ultimately, the Met has a duty to balance the rights of those engaged in protest and who are acting within the law, against the needs and rights of Londoners to go about their daily lives with minimum disruption. Where people are not acting within the law we continue to arrest them, and we anticipate arrests continuing to rise. We are also working closely with partner agencies, Transport for London, British Transport Police, City of London Police, City of Westminster and the Mayor’s Office, as well as the business community.’
‘…we will have had more than 1,000 officers on the streets policing the demonstrations. This is putting a strain on the Met and we have now asked officers on the boroughs to work 12-hour shifts; we have cancelled rest days and our Violent Crime Task Force (VCTF) have had their leave cancelled. This allows us to free up significant numbers of officers whilst responding to local policing. We would also like to reassure people that we have ring-fenced the VCTF so we retain the capacity to deal with any unrelated violent incidents. However, the protesters need to understand that their demonstration is meaning officers are being diverted away from their core local duties that help keep London safe and that this will have implications in the weeks and months beyond this protest as officers take back leave and the cost of overtime.’
Was anyone arrested?
An almost unique feature of the protests to date is that people are aware of the risk of arrest and are willing to be arrested – this ironically presents an incredibly difficult policing challenge.
The police say:
‘…we have arrested more than 460 people, the large majority for breach of Section 14 [of the Public Order Act 1986) and obstruction of the highway. Of those arrested, so far eight people have been charged with those offences. At this stage it is better for us to keep our resources and custody capacity moving and flexible than leave protesters sitting in cells for up to 12 hours before going to court for what, although highly disruptive, are lower level offences. So everyone else arrested has been released under investigation and will be brought back to be formally interviewed and charged as appropriate in due course. We are aware that means some protesters immediately return to the area to resume their activities; those people will be arrested again.’ (By Saturday 20th April the number of arrests had risen to almost 800).
Will all those people be prosecuted?
This remains to be seen, but potentially thousands of contested prosecutions would place an immense strain on the criminal justice system, so many people think that those released without charge will face no further action.
Are there any legal defences to these charges?
There are several defences potentially available although the lawful right to protest peacefully is not an absolute one, and case law is generally unhelpful. There are some developing areas of legal challenge and these are the ones that defence lawyers will be concentrating their efforts on. Law is a living instrument and must develop as society responds to concerns such as the ones raised by these protestors. We anticipate that there will be a good number of legal challenges flowing from these protests.
People must, however, be prepared to face arrest, prosecution and possibly a criminal record and must individually decide whether that is a price worth paying.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help – if you are arrested ask for us by name, the police can contact us so that we can speak to you privately.
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Soubry and the Nazi Slur – An Offence?
Was it an offence to accuse Anna Soubry of being a Nazi whilst she was broadcasting on Sky News?
Potentially, is the answer.
The Public Order Act 1986 contains the most likely candidates for any prosecution, in sections 4, 4A, and 5.
These sections deal with ‘lower level’ public order offences.
What are those provisions?
Section 4 is also known as ‘threatening behaviour’, and sections 4A and 5 are both types of ‘disorderly behaviour.’ Section 4 is the most serious, with section 5 the least serious.
The actions of the protestors during the interview, and then later on the street, might be one of these offences.
Which offence is it?
It will be for the Crown Prosecution Service to decide which to charge, and the Court to determine whether the people are guilty. The two behaviours could be charged together, individually, or not at all.
It needs to be remembered that the prosecution will be considering not only the fact that Miss Soubry may have been affected by the behaviour, but also other members of the public around the parliamentary estate.
What about the shouting?
That seems like it might fall under either section 4A, or section 5.
Section 4A says that a person is guilty of an offence if he uses threatening, abusive, or insulting words or behaviour and causes harassment, alarm or distress.
He also has to intend to cause a person harassment, alarm or distress.
Section 5 says that a person is guilty of an offence if he uses threatening or abusive words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress.
The critical difference is the intention of the person shouting the words.
Section 5 also doesn’t require any harassment, alarm or distress to actually be caused, just to be likely to be caused.
And the behaviour on the street?
That could fall under either of the above, or it might be the more serious section 4.
Section 4 says that a person is guilty of an offence if he uses threatening, abusive or insulting words or behaviour towards another person.
He must also have the intention to cause that person to believe unlawful violence will be used against them, or to do it in a situation where that person is likely to think that violence will be used against them regardless of intention.
I keep reading that swearing at the police is not a crime? Why is an MP different?
A Daily Telegraph report of a 2011 case has re-emerged on social media in the last few days. This report claimed that a High Court decision involving a man named Denzel Harvey meant that it was no longer illegal to swear at a police officer. In this case, it was said that Mr Harvey had sworn at officers who wanted to search him. Crucially, the officers did not say that they felt harassed, alarmed or distressed.
In this particular case, the High Court concluded that there was no evidence that these particular officers had been caused harassment, alarm or distress, or were likely to have been. Although the Judge pointed out that police officers hear such words all the time, he went on to say;
This is not to say that such words are incapable of causing police officers to experience alarm, distress,
or harassment. It depends ……….. on the facts.
What if I shouted at Anna Soubry?
Each public order offence is different, and each case is too. This is a general overview of the law.
Over the last few days we have seen definitive opinions on this subject, on both sides of the line.
In our view this rush to judgement is somewhat premature, all public order offences need to be seen in context with the full facts carefully investigated.
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.
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