New sentencing guidelines for public order offences published

A comprehensive package of guidelines to be used by all courts in England and Wales when sentencing offenders convicted of public order offences, ranging from low level disorderly behaviour to widespread public disorder, has been published today by the independent Sentencing Council, following consultation.

The new guidelines, which come into effect on 1 January 2020, provide sentencing guidance for existing offences under the Public Order Act 1986.

For the first time, all courts will have a clear framework to help ensure a consistent approach is taken to sentencing these offences. The guidelines will apply to offenders aged 18 years or over.  They have been development in accordance with the Council’s usual procedures which include a public consultation and an analysis of current sentencing practice.

The guidelines cover the offences below which are provided for by the Public Order Act 1986:

Sentencing Council member His Honour Mr Justice Julian Goose said:

“Public order is essential for the safe functioning of society and the law seeks to protect the public from behaviour which undermines this. These guidelines will ensure that courts have the structure they need to take a consistent approach to sentencing public order offences.”

The guidelines set a clear framework for sentencing and provide the essential factors that should be taken into consideration when determining the level of involvement an offender had in an incident and the impact of the offence on any victims. The guidelines also set out the aggravating and mitigating factors that should be considered before the sentence is passed.

A response to the consultation and a resource assessment have also been published.

Notes to editors

  1. The guideline contains sentencing guidance for the following offences in the Public Order Act 1986:

Offence

Definition

Maximum sentence

Riot

Section 1 of the Public Order Act 1986

Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety

Volumes of this offence are very low. In the period 2008 – 2018 there were around 30 offenders sentenced for riot. All offenders were sentenced in the Crown Court.

10 years

Violent disorder

Section 2 of the Public Order Act

Where three or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety

In 2018, 300 offenders were sentenced for this offence. Almost all offenders were sentenced in the Crown Court.

The offence of violent disorder can involve a broad range of activity. An analysis of cases identified that violent disorder can be charged in relation to offences akin to riot where all of the elements of a riot offence may not be made out; football related violence and disorder; fights between groups in public places or group violence towards individuals. Existing MCSG guidance also recognises that violent disorder offences may involve rare cases which involve minor violence or threats of violence leading to no or minor injury

5 years

Affray

 

Section 3 of the Public Order Act

A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

Volumes of this offence are relatively high. In 2018, 2,400 offenders were sentenced for this offence. The majority of offenders were sentenced in the Crown Court.

3 years.

 

Threatening behaviour

Section 4(1)

A person is guilty of this offence if he—

uses towards another person threatening, abusive or insulting words or behaviour, or

distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting,

with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.

In 2018, 4,800 offenders were sentenced for this offence. The vast majority of offenders were sentenced in magistrates’ courts.

6 months.

Racially or religiously aggravated Section 4

A person guilty of a racially or religiously aggravated offence is liable to a maximum of two years imprisonment. In 2018,  450 offenders were sentenced for the aggravated offence. The majority of offenders were sentenced in magistrates’ courts.

2 years

Section 4A Disorderly behaviour with intent to cause harassment, alarm or distress

 

A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, 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, thereby causing that or another person harassment, alarm or distress.

In 2018, 3,200 offenders were sentenced for the basic offence. The vast majority of offenders were sentenced in magistrates’ courts.

6 months

Racially or religiously aggravated disorderly behaviour with intent to cause harassment, alarm or distress Crime and Disorder Act 1998, Section 31

Offence as s4A and at the time of the offence or immediately before or after the offender demonstrates to the victim hostility based on the victim’s membership (or presumed membership) of a racial or religious group OR the offence is motivated in whole or part by hostility towards members of a racial or religious group.

In 2018, 2,400 offenders were sentenced for the aggravated offence. The vast majority of offenders were sentenced in magistrates’ courts.

2 years

Section 5 – Disorderly behaviour causing or likely to cause harassment, alarm or distress

 

A person is guilty of this offence if he—

(a) uses threatening or abusive words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening or abusive,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

In 2018,  3,900 offenders were sentenced for the basic offence. The vast majority of offenders were sentenced in magistrates’ courts.

In 2018, 1,000 offenders were sentenced for the aggravated offence.  All offenders were sentenced in magistrates’ courts.

£1,000 fine.

Racially or religiously aggravated disorderly behaviour, Crime and Disorder Act 1998, Section 31

Offence as s5 and at the time of the offence or immediately before or after the offender demonstrates to the victim hostility based on the victim’s membership (or presumed membership) of a racial or religious group OR the offence is motivated in whole or part by hostility towards members of a racial or religious group.

£2,500 fine

Stirring up hatred based on race, religion or sexual orientation

Racial Hatred Offences, Public Order Act 1986 (sections 18-23(3))

Hatred against persons on religious grounds or grounds of sexual orientation, Public Order Act 1986 (sections 29B-29G(3A)(3))

The legislation prohibits a range of activity including: use of words or behaviour or display of written material; publishing or distributing written material; public performance of play; distributing, showing or playing a recording; broadcasting or including in a programme service; and possession of racially inflammatory material where the offender intends to stir up racial hatred, and in some cases having regard to all the circumstances, racial hatred is likely to be stirred up.

Volumes of this offence are very low. In the period 2008 – 2018 there were around 80 offenders sentenced. The majority of offenders were sentenced in the Crown Court.

7 years

  1. The Council consulted on the guidelines from May to August 2018.
  2. Existing sentencing guidance for these offences is limited. Previously, there was limited guidance within the Magistrates’ Court Sentencing Guidelines (MCSG) for the sentencing of violent disorder, and guidance for sentencing affray, threatening behaviour, disorderly behaviour with intent to cause harassment, alarm or distress and disorderly behaviour causing or likely to cause harassment, alarm or distress in the magistrates’ courts. This guidance will be replaced by the new guidelines.
  3. Sentencing guidelines must be followed, unless the court is satisfied that it would be contrary to the interest of justice to do so. If a judge or magistrate believes that a guideline prevents the correct sentence from being given in an exceptional case, he or she can sentence outside of the guideline.
  4. Guidelines set sentencing ranges within the maximum for the offence as set out in current legislation. The guidelines are intended to reflect current sentencing practice for these offences.
  5. The Sentencing Council was established by Parliament to be an independent body, but accountable to Parliament for its work which is scrutinised by the Justice Select Committee. Justice Ministers are accountable to Parliament for the Sentencing Council’s effectiveness and efficiency, for its use of public funds and for protecting its independence. Judicial Council members are appointed by the Lord Chief Justice with the agreement of the Lord Chancellor. Non-judicial council members are appointed by the Lord Chancellor with the agreement of the Lord Chief Justice.

For more information, please contact Kathryn Montague, Sentencing Council Press Office, on 020 7071 5792 / 5788 / 07912301657