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The Law Commission , Working Paper No. 82 Offences against Public Order LONDON HER MAJESTY'S STATIONERY OFFICE @Crown Copyright 1982 First Published 1982 lSBN 0 11 730162 0 17-2 93-01 THE LAW COMMISSION WORKING PAPER NO. 82 OFFENCES AGAINST PUBLIC ORDER CONTENTS Paragraphs Pages SUMRY 1 I INTRODUCTION 1.1 -1.18 2-14 I1 COMMON LAW OFFENCES: THE PRESENT LAW 2.1 -2.65 15-52 A. Introduction 2.1 -2.3 15 B. Affray 2.4 -2.19 16-26 1. Elements of affray 2.4 -2.14 16-24 (a) Unlawful fighting or violence 2.5 -2.6 16-18 (b) Display of force 2.7 18-19 (c) In a public or private place 2.8 -2.9 19-20 (d) Presence of bystanders 2.10-2.11 20-22 (e) Public terror 2.12 22 (f) A continuing offence 2.13 22-23 (g) The mental element (mens rea) 2.14 23-24 2. Participation 2.15 24 3. Defences 2 -16-2.17 25 4. No requirement of consent 2 i18 25 5. Mode of trial and penalty 2.19 26 C. Riot 2.20-2.40 26-37 1. Introduction 2.20-2.21 26-27 2. Definition 2.22-2.33 2 7 -34 (a) Three or more persons 2.24 29 (b) Common purpose 2.25-2.27 29-31 (c) Execution or inception of the common purpose 2.28-2.29 31-32 (iii) Paragraphs Pages (d) An intent to help one another by force if necessary against any person who may oppose them in the execution of their common purpose 2.30 32 (e) Force or violence displayed in such a manner as to alarm at least one person of reasonable firmness and courage 2.31-2.33 33-34 3. Place of commission 2.34 34 4. Participation 2.35 34-35 5. Alternative verdicts 2.36 35 6. Defences 2.37 35-36 7. No requirement of consent 2.38 36 8. Mode of trial and penalty 2.39-2 40 36-37 D. Rout 2.41-2.42 37 E. Unlawful assembly 2.43-2.65 38-52 1. Definitions 2.43-2.50 30-43 (a) The "incipient riot" theory 2.44-2.45 38-39 (b) Hawkins 2.46 39-40 (c) Smith and Hogan 2.47 40-41 (d) Brownlie 2.48 41-42 2. The prohibited conduct (actus reus) 2.51-2.56 43-46 (a) Three or more persons 2.51 43 (b) On public or private property 2.52 43-44 (c) Being or coming together causing apprehension of a breach of the peace 2.53-2.56 44-46 3. The mental element (mens rea) 2.57-2.63 46-51 4. Participation 2.64 52 5. Mode of trial and penalty 2.65 52 Parag r aphs I11 GENERAL CONSIDERATIONS IN OUR APPROACH TO REFORM 3.1 -3.4 53555 IV AFFRAY 4.1 -4.45 55-86 A. Is there a need to retain a separate offence of affray? 4.2 -4.10 55-62 B. The elements of a proposed statutory offence of affray 4.11-4.44 62-86 1. General 4.11-4.12 62-63 2. The prohibited conduct 4.13-4.32 63-78 (a) Fighting or acts of violence inflicted by one or more persons upon another or others 4.13-4.16 63-65 (b) Other than mere threats or displays of violence 4.17-4.20 65-68 (c) In public or private places 4.21 69-70 (d) Such as would reasonably have caused any other person, if present, to be put in fear of his personal safety 4.22-4.32 70-78 (i) Terror 4.23 70-71 (ii) Innocent bystanders 4.24-4.31 71-77 (iii) Provisional conclusion as to the element of terror 4.32 77-78 3. The mental element 4.33-4.38 78-83 4. Defences 4.39-4.40 83-84 (a) Without lawful excuse 4.39 83 (b) Voluntary intox ica t ion 4.40 84 5. Penalty 4.41-4.42 84-85 6. Mode of trial 4.43 85-86 7. Consent provision 4.44 86 C. Summary 4.45 86 Paragraphs Pages V RIOT AND ROUT 5.1 -5.56 87-123 A. Introduction 5.1 -5.2 87 B. Rout 5.3 -5.4 87-88 C. Consideration of the need for an offence of riot 5.5 -5.17 88-98 1. Rationale and present use 5.5 -5.9 88-92 2. Possible alternative offences 5.10-5.16 92-97 3. Provisional conclusion 5.17 97-98 D. The elements of a proposed statutory offence of riot 5.18-5.52 98-122 1. General 5.18-5.19 98-99 2. Three or more persons 5.20-5.23 99-103 3. Engaging in an unlawful course of conduct 5.24-5.31 103-108 (a) Function of the concept of common purpose 5.25-5.26 103-105 (b) Course of conduct 5.27 105 (c) Present together 5.28 106 (d) Conduct of a private or public nature 5.29 106-107 (e) The unlawful character of the course of conduct 5.30 107 (f) Engaging in the course of conduct 5.31 107-108 4. Violence 5.32-5.36 108-112 (a) Threats or displays of violence 5.33 108-110 (b) Force 5.34 110-111 (c) Fear 5.35 11 1 (d) Conclusion 5.36 112 5. In public or private places 5.37 112 6. The mental element 5.38-5.45 112-117 (a) At common law 5.38-5.39 112-113 (b) The new offence 5.40-5.45 114-117 7. Defences 5.46-5.47 117-119 (a) Without lawful excyse 5.46 117 (b) Voluntary intoxicatjon 5.47 118-119 (vi) Paragraphs Pages 8. Consent provision 5.48-5.49 119-120 9. Mode of trial 5.50 120-121 10. Penalty 5.51-5.52 121-122 E. Possible implications of our proposals as to riot outside the criminal law 5.53-5.55 122-123 1. Riot (Damages) Act 1886 5.54 122-123 2. Insurance 5.55 123 F. Summary 5.56 123 VI UNLAWFUL ASSEMBLY 6.1 -6.42 124-155 A. Introduction 6.1 -6.2 124-125 B. Consideration of the need for an offence of unlawful assemby 6.3 -6.16 125-136 1. General considerations 6.3 -6.6 125-129 2. Assemblies whose purpose is to commit a breach of the peace 6.7 -6.10 129-132 3. Assemblies whose purpose is to provoke others to commit a breach of the peace 6.11-6.15 132 - 136 4. Provisional conclusion 6.16 136 C. The elements of a proposed statutory offence of unlawful assembly 6.17-6.41 137-155 1. General 6.17-6.18 137-138 2. Three or more persons present together 6.19 138- 139 3. Whose words or actions would reasonably have caused any other person, if present, to apprehend an imminent breach of the peace 6.20-6.21 139-140 4. Should breach of the peace be defined? 6.22-6.26 140-145 5. Common purpose 6.27-6.34 145- 150 (a) Its function at copnon law 6.27-6.30 145-14 7 (b) Its scope in a new offence 6.31-6.33 147-150 (c) Summary 6.34 150 6. In public or private places 6.35 150-151 7. The mental element 6.36 151-152 8. Defences 6.37 152 (vii) Paragraphs Pages 9. Mode of trial 6.38 152-153 18. Alternative verdicts 6.39 153-154 11. Penalty 6.40 154-155 12. Consent provision 6.41 155 D.. Summary 6.42 155 VI1 MISCELLANEOUS STATUTORY OFFENCES RELATING TO PUBLIC ORDER 7.1 -7.24 156-170 A. Introduction 7.1 156 B. Offences relating to the prevention of disorder around Parliament 7.2 -7.13 156-164 1. Tumultuous Petitioning Act 1661 7.2 -7.4 156-158 2. Seditious Meetings Act 1817, section 23 7.5 -7.6 158-159 3. Other related provisions 7.7 -7.9 159-162 4. Provisional conclusions 7.10-7.13 162-164 C. Shipping Offences Act 1793 7.14-7.15 164-166 D. Vagrancy Act 1824, section 4 7.16-7.18 166-167 E. Metropolitan Police Act 1839, s. 54(13) and City of London Police Act 1839, s. 35(13) 7.19-7.22 167-169 F. Summary of provisional proposals 7.23-7.24 169-170 VI I1 CUMULATIVE SUMMARY OF PROVISIONAL PROPOSALS 8.1 -8.6 171-173 Appendix A Stat stics drawn from the Criminal Statistics 1973-1980 and Duration of Custodial Sentences Imposed by the Crown Court (1976-1980) 174-175 Appendix B Riot and related offences in other legal systems 176-191 Appendix C Selected texts of statutory provisions 192-194 (viii) THE LAW COMMISSION Working Paper No. 82 OFFENCES AGAINST PUBLIC ORDER In this Working Paper the Law mionconsiders, as part of its programme of codification of the criminal law of England and Wales, the four common law offences of affray, riot, rout and unlawful assembly. It provisionally proposes the abolition of the obsolete offence of rout. It proposes that the other offences in question be abolished and be replaced by modern statutory offences having broadly similar characteristics to the present common law offences.
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