Public Order Act 1986.
Section 5 – Harassment, Alarm or Distress
This section deals with the offence of causing someone harassment, alarm or distress. In order to be guilty of this offence, you must have been using threatening, abusive or insulting behaviour or words (or disorderly behaviour). On protests, posters and any reasonable use of megaphones would not constitute a section 5 offence. Generally speaking when you are on a protest, it is best just to use your common sense. It goes without saying that you should not block entrances/exits, verbally abuse anyone, swear, trespass on to private property or intimidate people.
You are perfectly within your rights to display images of animal cruelty to the public and display banners so long as they are not insulting, abusive or threatening. So it is perfectly acceptable to say “XXX torture animals for ….” and so on. It is not insulting, abusive or threatening to show images of animal cruelty. These images are factual and show the truth.
You can make up protest chants and use a megaphone* to get your message heard, and you can hand out leaflets to the public. You can use whistles and beat drums to draw attention to your protest. Being loud does not constitute an offence so long as you are not doing it to cause intimidation or harassment. However please be aware that some companies used to protests may have taken out an injunction that prohibits you by law from doing these things. See our article on injunctions for more information.
*there may be certain byelaws in some places that restrict the use of “amplified noise” and you should be aware of the restrictions on what time you can use amplified noise due to “environmental pollution”.
Occasionally the police may tell you that you cannot use a megaphone or make any noise either because it is “anti-social”, a “breach of the peace”, or because it is “threatening, insulting, abusive or disorderly behaviour”, etc. but the use of a megaphone as part of lawful protest is not a criminal offence.
Justice Holland, a judge in the High Court in 2007 stated that: “Protest is lawful; the use of a megaphone as an adjunct of lawful protest is itself lawful. The starting point is unfettered freedom to engage in so much amplified protest as is neither intimidating or harassing.” HLS Group Plc v SHAC 2007 WL 919475 [2007] EWHC 522 (QB) QBD.
However, if you were to shout insulting and abusive comments through a megaphone or point it deliberately in someone’s face, this would amount to an offence.
Defences (according to police handbooks) include:
1. The person had no reason to believe there was anyone in sight/hearing who would be likely to be caused harassment, alarm or distress.
2. The person’s conduct was reasonable.
3. The person was inside a dwelling and had no reason to believe the behaviour, etc. would be seen or heard by anyone outside that dwelling.
For an offence to be committed conduct must cause harassment, alarm or distress or be disorderly, using threatening, abusive or insulting behaviour or words – both parts of the criteria must be satisfied. Section 5 is often abused by police when dealing with protests.
The police can be caused harassment, alarm and distress but have a higher threshold, although we have seen some ridiculous examples of people being found guilty of s5 having done very little. While the police should only be able to justify arresting you for causing them harassment, alarm or distress if you’ve exposed them to behaviour or language worse than what they would reasonably expect to see/hear during the course of their duties as an officer, it’s best not to give them any excuse to arrest you or give you any trouble.
Definitions:
Harassment – Means to subject someone to constant and repeated physical and/or verbal persecution.
Alarm – Means a frightened anticipation of danger.
Distress – Means to cause trouble, pain, anguish, or hardship.
Threatening – Includes verbal and physical threats, and also violent conduct.
Abusive – Means using degrading or reviling language.
Insulting – Has been held to mean scorning, especially if insolent or contemptuous.
Disorderly – Disorderly behaviour does not require any element of violence, actual or threatened; and it includes conduct that is not necessarily threatening, abusive or insulting. It is not necessary to prove any feeling of insecurity.
For more information, see the website of the CPS (the Crown Prosecution Service): http://www.cps.gov.uk/legal/p_to_r/public_order_offences/#Section_5
The Law.
(1)A person is guilty of an offence if he—
(a)uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b)displays any writing, sign or other visible representation which is threatening, abusive or insulting,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.
(3)It is a defence for the accused to prove—
(a)that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or
(b)that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or
(c)that his conduct was reasonable.
(4)A constable may arrest a person without warrant if—
(a)he engages in offensive conduct which a constable warns him to stop, and
(b)he engages in further offensive conduct immediately or shortly after the warning.
(5)In subsection (4) “offensive conduct” means conduct the constable reasonably suspects to constitute an offence under this section, and the conduct mentioned in paragraph (a) and the further conduct need not be of the same nature.
(6)A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.