Public Order Offences: The Hierarchy

The Public Order Act 1986 created a hierarchy of public order offences graduated by severity and scope. The most serious is riot (section 1), which requires twelve or more persons present together to use or threaten unlawful violence for a common purpose, where the conduct would cause a person of reasonable firmness in the scene to fear for their personal safety. Riot is an indictable-only offence carrying a maximum sentence of ten years' imprisonment. Violent disorder (section 2) requires three or more persons, and affray (section 3) requires only one person but must involve the use or threat of unlawful violence towards another.

Further down the hierarchy are the offences under sections 4 to 5. Section 4 (fear or provocation of violence) makes it an offence to use threatening, abusive, or insulting words or behaviour, or to distribute or display written material that is threatening, abusive, or insulting, where the defendant intends to cause another to believe that immediate unlawful violence will be used against them, or to provoke immediate unlawful violence. Section 4A (intentional harassment, alarm or distress) and section 5 (harassment, alarm or distress) capture less serious conduct, with section 5 being the least serious but most commonly charged.

The 1986 Act also contains provisions relating to racial and religious hatred (Part IIIA, added by the Racial and Religious Hatred Act 2006) and hatred on grounds of sexual orientation (also Part IIIA). These provisions require the prosecution to prove stirring up of hatred rather than merely causing harassment or distress, and they carry a maximum sentence of seven years. The threshold for prosecution is higher and the consent of the Attorney General is required.

The Public Order Act 2023 added further offences including "locking on" (attaching to another person, an object, or land in a way that obstructs or impedes a public highway, railway, or navigable waterway), interfering with key national infrastructure, and offences relating to disruptive protest activity. These provisions were controversial and their compatibility with Articles 10 and 11 of the European Convention on Human Rights (freedom of expression and assembly) has been challenged in the courts.