An offence of s4A Public Order Act of intentional harassment, alarm or distress is subtly different to a s4 Public Order Act (Threatening words and behaviour). 

What is Intentional harassment alarm or distress?

An offence under s4A of the Public Order Act 1986 is usually difficult for prosecutors to establish and the case can often be picked apart to undermine one or more of the ‘elements’ that the prosecution must prove in order to gain in a conviction. These are:

– That a defendant must intend to cause a person harassment, alarm or distress; and 
– That with the above intention the defendant uses threatening, abusive or insulting words or behaviour, or disorderly behaviour; or
– Displays any writing, sign or other visible representation which is threatening, abusive or insulting; so 
– That the other person was thereby caused harassment, alarm or distress.

The Courts have held that the word distress could be defined by its context; “harassment, alarm or distress” have been held to be relatively strong words. In R. (R.) v DPP [2006] EWHC 1375 (Admin) the Court held that “distress” requires genuine emotional upset or disturbance. 

While this need not be very serious, it should not be trivialised. Later decisions have held that there was no need for the act to be likely to lead to some kind of real emotional disturbance or upset. “Harassment” has been held to be able to be experienced without any real emotional disturbance or upset.

The offence may be committed in a public place or a private place, but no offence is committed where the actions are undertaken by a defendant inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.

In order for a defendant to be guilty the offending behaviour must actually have occurred within the sight or hearing of someone likely to be caused harassment, alarm or distress; the offence cannot be proved on the basis that someone might or possibly could have heard or seen the behaviour. 

However, where a person posts an image on a publicly accessible website with the necessary intent, that can amount to a s4A offence. The fact that the other person does not see it until he/she is shown it by someone else does not matter nor does it matter that the image was removed from the site before it was shown to the person who was caused the harassment, alarm or distress. (S. v CPS [2008] EWHC 438 (Admin); [2008] A.C.D. 46, DC).

Although the offences created by s4A can only be tried in the Magistrates Court there are racially or religiously aggravated versions of the offences under s31 of the Crime and Disorder Act 1998 which can be tried in either the Magistrates Court or the Crown Court.

Section 4A Public Order Act Defences

S4A subsection (3) sets out two statutory defences:

– If a defendant was inside a dwelling and had no reason to believe that his actions would be heard or seen by a person outside that or any other dwelling
– That his conduct was reasonable.

In addition, normal defences to S4 Public Order Act can be used, including:

– That there was a lack of ‘intent’ to commit the offence
– That the alleged actions did not take place or were different to that which is alleged by the prosecution
– That the actions/words were not threatening, abusive or insulting
– That the actions/words did not cause harassment alarm or distress
– That the measures taken were necessary for self defence and defence of another or property.
– That the actions/words were an exercise of freedom of speech defence.

In Campaign Against Antisemitism v DPP [2019] EWHC 9 (Admin), DC, where the appeal court found that words used at a peaceful, protest event may have been intemperate and offensive, but that did not mean that they were abusive. The words fell within the right to freedom of expression, protected by art.10 of the European Convention on Human Rights.

 Sentence

The maximum sentence for such an offence is 6 months imprisonment.

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