Public Order Act 1986

The Public Order Act 1986 was arguably one of the three great reforming pieces of criminal legislation introduced by Margaret Thatcher’s Conservative government^[1]. Along with the Police and Criminal Evidence Act 1984, the Public Order Act 1986 recognises the change in policing that occurred in the UK. During this period, there was an evolution from “policing the margins” of society to control of large blocks of the populations^[2]. The Act was passed after a prolonged period of public unrest and radically reformed public order offences in England and Wales. This will be explored below.

Context of the Act

Britain has a long history of rioting; sometimes as a form of political protest, other times in the context of industrial disputes or as a reaction to feelings of disconnection between different parts of the community^[3]. During 1984 and 1985, the long running miner’s strike saw a significant number of serious public order incidents as strikers fought running battles with the police^[4]. The g common law powers that were relied upon to combat public order,, were felt to be inadequate to deal with the modern world.

The need for a new act came at the time that the nature of public order policing in the UK was undergoing a radical change. Until the late 1970s, the police approached tackling public order without any specialist training or equipment, preferring to rely on the image and reputation of the “British Bobby” to encourage compliance with the law^[5]. The mass disorder during the miner’s strike led to the government concluding that this approach could no longer be relied on. Instead they oversaw a new regime where specialist uniforms, helmets and riot shields, as well as other equipment, were available to the police and significant training was developed to help officers control public order situations^[6]. This new style of paramilitary policing rapidly became the norm, and this modernised style of policing needed a new legal structure to support it.

Even prior to the Miner’s Strike the Law Commission had recommended that the law on public order be modified, and following the strike the Government introduced a Bill into Parliament that in due course became the Public Order Act 1986^[7]. The Law Commission had concluded that public order laws as they currently stood, comprising a mix of common law and statutory offences, was inadequate and ineffective, and that a comprehensive statute was required to bring the law up to date^[8]; The Public Order Act 1996 was the result.

Key Sections

The Act as originally drafted contained five main offences relating to public order, which are set out below. Although there have been some modifications since these continue to be the main framework for public order policing. The five offences are riot^[9], violent disorder^[10], affray^[11], threatening behaviour^[12] and disorderly conduct^[13]. Each of these will be considered in turn..

Section 1 of the Act creates the offence of riot. For a riot there needs to be at least 12 people involved^[14] who must be present together and must be acting with a “common purpose^[15]”. They must use or threaten unlawful violence^[16] and this must be of such a level as would cause a person of reasonable firmness to fear for their personal safety^[17]. This is a test that occurs on a number of occasions in the Act. Riot is an indictable only offence^[18] and carries a maximum sentence of ten years imprisonment^[19]. It is the most serious public order offence under the act.

Violent disorder is created by Section Two of the Act. This requires the involvement of at least three people^[20] and again has the requirement that there is a use or threat of unlawful violence^[21]. The reasonable person test again applies^[22]. Violent disorder can be tried either at the magistrates or the Crown Court and has a maximum sentence of 5 years imprisonment^[23].

The most serious public order offence that can be committed by a person acting alone is affray under Section Three of the Act. This is an offence that can be tried at the Magistrates’ Court or Crown Court and has a maximum sentence of three years imprisonment.

The final two offences under this part of the act can only be tried at the Magistrates’ Court. These are threatening behaviour^[24] and disorderly conduct^[25]. The maximum sentence for threatening behaviour is six months imprisonment^[26] and disorderly conduct is non-imprisonable^[27]. These offences differ from the more serious ones in that the requirement that the defendant used or threatened unlawful violence is not present, and the reasonable person test does not apply.

The second part of the Act^[28] contains a number of rules relating to public processions and demonstrations. These required that the police are given six days written notice of any procession^[29] and also give the police the power to impose conditions on processions^[30], including specifying the route that it shall take or prohibiting it from entering a particular area^[31]. These conditions may only be imposed where the police believe that they are necessary to prevent serious public disorder or damage^[32], or where there will be serious intimidation of people^[33]. They also permit the police to apply to the local authority for an order banning public processions for a period of up to three months^[34].

Part three of the act^[35] contains a number of provisions relating to behaviour likely to stir up racial hatred. As set out above there had been significant race riots in the UK during the early 1980`s and the Act prohibits behaviour intending to stir up racial hatred or where it is likely that racial hatred will be stirred up^[36].

Since the passing of the Act there have been a number of amendments made. Of most importance are the addition of an offence of intentional harassment, alarm or distress under s4A of the Act^[37] and the removal of insulting behaviour from the ways that an offence can be committed under s5^[38]. This latter campaign was unusual in that its supporters included both the National Secular Society and the Christian Institute, and reform was championed by the Liberal Democrat political party who were part of the coalition government between 2010 and 2015. However the Act has stood the test of time and the structure of offences that it introduced remain in effect today.

Table of Statutes

Crime and Courts Act 2013
Criminal Justice and Public Order Act 1994
Police and Criminal Evidence Act 1984

Prosecution of Offences Act 1985

Public Order Act 1986

Table Of Publications

Brewer J, Guelke A, Hume I, Moxon-Browne E and Wilford R, The Police, Public Order and the State (Macmillan, 1988)

Geary R, Policing Industrial Disputes, (Cambridge University Press 1985)
Jefferson T, The Case Against Paramilitary Policing (Open University Press 1990)
King M and Bearley N, Public Order Policing: Contemporary Perspectives on Strategy and Tactics (Perpetuity Press 1996)

Law Commission. Criminal Law: Offences Relating to Public Order (Law Com 123). HMSO. 1983
Rowe M, Race Riots in Twentieth Century Britain (University of Leicester 1994)

Waddington P, The Long Arm Of The Law, (Clarendon Publishing 1991)