H418/03 - Public order and assembly restrictions

Breach of the peace

The common-law breach-of-the-peace power allows necessary preventive action against actual or imminent violence rather than mere disagreement.

The definition explained in R v Howell (1982) and considered in Laporte covers actual or likely harm to a person, or to property in that person's presence, or fear of such harm through assault, affray, riot, unlawful assembly or other disturbance. The old wording does not revive abolished common-law offences. In England and Wales, breach of the peace is not itself a criminal offence; preventive arrest and binding-over procedures are distinct from conviction for a statutory offence.

Police may intervene when a breach is occurring or they reasonably apprehend an imminent breach, including arrest where necessary. A possible future confrontation does not alone suffice. Any action must be necessary and proportionate: a less intrusive step that can prevent the danger should be considered. Once the basis for detention ends, continued detention needs its own lawful justification.

R (Laporte) v Chief Constable of Gloucestershire (2006) illustrates the boundary. Police returned coach passengers travelling to a demonstration although they did not reasonably apprehend an imminent breach at the point of intervention. Possible trouble later did not authorise that indiscriminate preventive measure. The judgment limits common-law preventive power; it does not abolish lawful statutory controls or forbid intervention until someone is injured.

Original contrast: two rival groups stand apart exchanging criticism. Dislike and speculative fear do not prove imminent violence. If participants advance on each other with raised weapons and credible threats, immediate preventive action becomes much easier to justify. Even then, the legal question includes which people and measures are necessary, not an automatic permission to arrest everyone nearby. Articles 10 and 11 require attention to peaceful participants and the actual danger.

Riot

Riot under Public Order Act 1986 section 1 requires group violence for a common purpose and does not make every member of a large crowd guilty.

There must be twelve or more people present together using or threatening unlawful violence for a common purpose. Their conduct taken together must be such as would cause a hypothetical person of reasonable firmness at the scene to fear for personal safety. No such bystander need actually be present or frightened. The participants need not act simultaneously, and common purpose can be inferred from conduct rather than proved by a written plan.

Individual liability is narrower than the group threshold: the person charged with riot must use unlawful violence for that common purpose. A person who only threatens can contribute to the twelve-person threshold without thereby being guilty of riot under section 1. Section 6 requires the individual to intend violence or be aware that their conduct may be violent. Unlawful violence excludes force that is legally justified; assess the justification rather than assuming that every physical act is criminal.

Under section 8, violence for riot and violent disorder can be against property as well as people, and need not actually cause injury or damage. Riot can occur in a private as well as a public place. The maximum sentence on indictment is ten years' imprisonment, a fine, or both. Its seriousness reflects coordinated violence, not simply the size or unpopularity of the gathering.

Original example: twelve people together pursue a shared plan to attack a rival group. Eleven throw dangerous missiles; the twelfth knowingly threatens the same attack but uses no violence. If the reasonable-firmness test and mental elements are proved, the throwers may be guilty of riot. The threatening person helps meet the group threshold but is not guilty of riot on threats alone; another offence may apply. A thirteenth peaceful observer does not become guilty simply by being present.

Violent disorder

Violent disorder under Public Order Act 1986 section 2 requires at least three people using or threatening unlawful violence together, without riot's common-purpose requirement.

The three or more people must be present together, and their combined conduct must be such as would make a person of reasonable firmness fear for personal safety. They need not use or threaten violence simultaneously. No actual bystander is required. Each individual who uses or threatens the relevant unlawful violence may be guilty: unlike riot, threats can found individual liability. Section 6 requires intention to use or threaten violence, or awareness that the conduct may be violent or threaten violence.

The violence can concern property or people. A lawful justification remains relevant, and a peaceful crowd member is not liable just because three other people commit the offence. A common purpose may exist in the facts, but the prosecution need not establish one for section 2. The offence can occur in public or private; the maximum sentence on indictment is five years, a fine, or both.

Original example: three people in a railway forecourt threaten and hurl heavy objects during separate quarrels, their combined behaviour creating the required fear. A common plan need not be proved for violent disorder. If only two use or threaten unlawful violence and all others are peaceful, section 2's numerical threshold fails, although an individual offence such as affray may remain possible. Count qualifying conduct, not every person in view.

This separates actus reus, the required conduct and circumstances, from mens rea, the required mental element. A correct legal argument tests both. Saying “three people were there” omits the required violence and fear test; saying “it looked frightening” omits the group and individual elements.

Affray

Affray under Public Order Act 1986 section 3 can be committed by one person using or threatening unlawful violence towards another.