Written by: Helen Hanley, PNLD Legal Adviser
Not reviewed after the date of publication - 25 December 2024
As the party season has begun and more people take to the pubs, restaurants and shopping centres enjoying the festivities with friends and family, demand for services is increased. People interact more, and although people won’t usually set out to cause trouble, unfortunately they can end up in a position whereby they do just that. At home, families tend to spend more time together which means that at times, tensions can run high. Also, the hustle and bustle of busy shops and the increase in online spending gives opportunist thieves and scammers their advantage to steal and defraud. Christmastime therefore can be a very busy and stressful time for the police.
Below we highlight 12 of the most common crimes of Christmas, and the legislation that enables the police to deal with them -
1 - Public Order offences
The occurrence of public disorder at this time of year can increase due to a surge in social and public events. The Public Order Act 1986 (POA 1986) creates offences and powers to assist the police to preserve public order and control public assemblies. The following two offences can be committed in public and private places:
The next set of offences can be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and where the person who is harassed, alarmed or distressed is also inside that or another dwelling.
- Section 4 – causing fear or provoking violence / threatening behaviour (Offence H701).
- Section 4A – intentional harassment, alarm or distress (Offence H350).
- Section 5 – harassment, alarm or distress (Offence H11412).
Intoxication (drink or drugs) may be more prevalent during the festive period but that is not a defence to offences under sections 3, 4 or 5. A person whose awareness is impaired by intoxication shall be taken to be aware of that of which he would be aware if not intoxicated, unless he shows either that his intoxication was not self-induced or that it was caused solely by the taking or administration of a substance in the course of medical treatment (section 6(5) of the Public Order Act 1986).
Section 31 of the Crime and Disorder Act 1998 creates racially or religiously aggravated public order offences, increasing the maximum penalty for offences under sections 4, 4A and 5 where racial or religious hostility is demonstrated – see Racist and Religious Hate Crime - Prosecution Guidance.
2 - Assault offences
Over Christmas, there can be a significant increase in reporting of assault, in both public and domestic settings. The main assault offences to consider are:
- Section 39 of the Criminal Justice Act 1988 (Offences H4325 and H4302) – common assault and battery. The offences cover reckless and intentional acts.
- Section 47 of the Offences Against the Person Act 1861 (Offence H479) – assault occasioning actual bodily harm. Some physical harm must be caused to the victim. It does not need to be serious or permanent but must be more than trifling or transient.
- Section 20 of the Offences Against the Person Act 1861 (Offence H478) – unlawful wounding / inflicting grievous bodily harm. Proof of wounding requires a break in the continuity of the skin. GBH means serious harm. This offence can be committed intentionally or recklessly. The difference between a section 18 and section 20 GBH is the mens rea of the offence.
- Section 18 of the Offences Against the Person Act 1861 (Offences H477 and H476) – causing grievous bodily harm with intent to do grievous bodily harm / wounding with intent to do grievous bodily harm. This is the most serious of the assault offences and involves situations in which someone intended to cause very serious harm to the victim.
CPS guidance provides information on selecting the most appropriate charge.
How does ‘intoxication’ affect offences of assault?
Self-induced intoxication from alcohol or drugs or both, may be a defence to an offence requiring specific intent where it can be proved that the defendant was incapable of forming the necessary intent due to intoxication.
Section 18 is a crime of specific intent, i.e., ‘intent’ is the key element in determining whether the defendant had formed the required mens rea for the offence. The defence of intoxication is a defence. Section 47 and section 20 are crimes of basic intent, i.e., they can be committed intentionally, recklessly or negligently, intoxication will not succeed in establishing any defence. The leading case is DPP v Majewski (1977) AC 443.
When dealing with any report of assault, consideration should always be given to aggravating factors such as whether the assault is racially / religiously aggravated, domestic-related or is abuse of a child. An investigation must be conducted in accordance with relevant guidance, so a victim can be afforded with the necessary protection.
Assaults on police, persons assisting police and upon emergency staff are also common, see:
- Section 38 of the Offences Against the Person Act 1861 (Offence H2016 on PNLD) - assault with intent to resist arrest.
- Section 89(1) of the Police Act 1996 (Offences H901 and H902 on PNLD) - assault on a police constable in execution of his duty.
- Section 1 of the Assaults on Emergency Workers (Offences) Act 2018 (Offences H100760 and H100758 on PNLD) - aggravated common assault or battery against an emergency worker.
3 - Domestic Abuse
Domestic abuse is not a specific offence as such, but a term describing a range of behaviour and can apply to various offences. Domestic abuse cases are amongst the highest priority work dealt within the criminal justice system. The safety of adult and child victims of domestic abuse is imperative when prosecuting any offence that is domestic abuse.
Section 1 of the Domestic Abuse Act 2021provides the statutory definition of ‘domestic abuse’. Statutory guidance issued under section 84(4) of the Domestic Abuse Act 2021 gives guidance on the provisions of the Act, see the link in the notes on section 84. See also The College of Policing App.
Last year’s figures on domestic abuse cases showed a 15% spike in calls to helplines and refuges over the Christmas period. The number of domestic abuse cases is probably much higher than reported as many victims feel they can’t make a report. The government have produced guidance for members of the public Domestic abuse: how to get help.
4 - Fraud
At Christmas, fraud is particularly prevalent. Action Fraud highlighted in their campaign launched on 28th November 2024 that there are 12 scams that people must be aware of at this time of year. These include shopping fraud, Christmas e-cards, auction fraud, holiday fraud and charity fraud – see 12 Online Frauds of Christmas for details. Professional support can be accessed by victims of fraud through Action Fraud.
The offence of fraud can be committed in three different ways, which are detailed in sections 2, 3 and 4 of the Fraud Act 2006.
5 - Theft from shop
A person is guilty of theft contrary to section 1 of Theft Act 1968 if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it and ‘thief’ and ‘steal’ shall be construed accordingly (H410).
For thefts of property under £100, consideration can be given to issuing a penalty notice for disorder under section 2 of the Criminal Justice and Police Act 2001 . A penalty notice for disorder can be issued at the time, but the person then has 21 days to pay the fine or challenge the ticket. The ticket can’t be paid at the time of issue, and they can only be issued to offenders aged 18 or over. Only one PND should ever be issued to an individual for retail theft. A PND should not be issued to an offender who is a substance misuser.
Where the value does not exceed £200, section 22A of the Magistrates’ Courts Act 1980 deals with ‘low value shoplifting’.
Please see Unacceptable levels of shop theft causing serious harm to society, published 5 November 2024 which describes the changes to the law on shoplifting that are being considered.
Section 3 of the Theft Act 1978 (Offence H460) creates the offence of making off without payment. Making off involves dishonestly leaving the place (or spot) where payment is required, for example leaving a restaurant dishonestly without paying and intending to avoid payment. Where a person cons the victim into thinking that they would pay later, the Fraud Act 2006 should be considered.
6 - Burglary
Burglaries tend to increase in the winter months, seeing spikes of around 20%. At Christmas time, thieves take the opportunity to break in and take high value Christmas presents from homes.
The offence of burglary is committed contrary to section 9 of the Theft Act 1068 when a person
- enters a building, or part of a building, as a trespasser with the intent to commit the offences of theft, inflicting GBH or criminal damage (subsection 9(1)(a)); or
- where an individual enters a building, or part of a building, as a trespasser and steals or attempts to steal or attempts to steal anything or attempts to inflict GBH or any person therein (subsection 9(1)(b)).
‘Building’ is an ordinary word (Brutus v Cozens 1973) and has been held to have to be 'a structure of considerable size and intended to be permanent or at least to endure for a considerable time' (Stevens v Gormley 1859). A tent is not classed as a building.
Where an instrument is inserted into a building with the sole purposes of gaining entry by, for example, unhooking a door lock, then this would not class as an ‘entry’ for the purpose of the offence of burglary. Where an individual uses an instrument in order to commit one of the relevant offences, for example to steal, then this would be classed as an extension of that person’s physical form and would be an ‘entry’.
Where someone inserts part of their physical body into a building and has the intent to commit one of the relevant offences, then this will be an ‘entry’. Where an individual inserts part of their body into a building but does not possess the specific intent to commit one of the relevant offences, then the offence is not made out.
7 - Robbery
A person is guilty of robbery if the person steals, and immediately before or at the time of doing so, and in order to do so, they use force on any person or puts or seeks to put any person in fear of being then and there subjected to force – see section 8 of the Theft Act 1968 (Offence H432). Force must be used to steal. For example, if someone were to punch a victim and knock them out, before forming the intention to steal their bag, this would be theft but not robbery (a charge of assault could also be considered).
8 - Criminal Damage
There’s a greater risk of criminal damage at Christmas.
A person who without lawful excuse, destroys or damages any property, belonging to another, intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence – see section 1 of the Criminal Damage Act 1971 (and related offence wordings, which depend on the amount of damage – see below:
Where the value of the damage is below £300 a penalty notice for disorder can be considered.
An owner can damage their own property if, at the same time, it also belongs to someone else within the meaning of section 10(2) of the Criminal Damage Act 1971 -
“10(2) Property shall be treated for the purposes of this Act as belonging to any person –
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest) or
(c) having a charge on it.”
Section 30(1) of the Crime and Disorder Act (Offence H10011) creates the offence of racially or religiously aggravated criminal damage.
Where the offence of criminal damage is shown to be motivated by (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group, there is no need to identify a specific victim of the offence. As an example, spray-painting racist graffiti on a wall.
9 - Drink/Drug Driving
In 2022, an estimated 1,920 people were killed Christmas – THINK! or seriously injured in collisions where drink was a factor. Each year, police forces launch campaigns to highlight the risks of drink and drug driving. The legislative provisions for drink / drug driving are found in the Road Traffic Act 1988. This Act
1 Creates offences – section 3A Causing death by careless driving when under influence of drink or drugs
- section 4 Driving, or being in charge, when under influence of drink or drugs
- section 5 Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit
- section 5A Driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified limit
2 Provides powers to a constable to require a person to co-operate with any one or more of the preliminary tests (section 6(1)) (i.e., the preliminary breath test in section 6A, preliminary impairment test in 6B or a preliminary drug test in 6C and a power to administer a preliminary test (6(2) to (4)) of the RTA.
3 Gives a constable the powers of arrest specified in section 6D .
4 Gives a power of entry for the purposes specified in section 6E .
10 - Harassment and stalking
Christmas time can be a period where people attempt to rekindle old relationships or form new ones, but where the attention becomes excessive or unwanted, this can amount to a person committing an offence of harassment or stalking. Sections 2 and 4 of the Protection from Harassment Act 1997 (Offences H5 and H18816 on PNLD) create the offences of harassment. Sections 2A and 4A of the Act (Offences H10641 and H18817) create offences of stalking.
The Stalking Protection Act 2019 introduced a Stalking Protection Order (SPO). A SPO is intended to protect any person of any age experiencing stalking. They allow the police to address stalking behaviours early before they become entrenched or escalate, to protect victims from further harm. See Stalking Protection Orders and the Statutory guidance regarding the application of the Act may be accessed via the following link.
11- Sexual offences
Sexual assault and rape can be closely linked to domestic abuse. Also, they can occur outside of the domestic setting, and this is particularly so, when alcohol and drugs tend to be more at play. Offenders can deliberately target women who are vulnerable through their consumption of drink or drugs (the consumption can be voluntarily or as a result of ‘spiking’). Part 1 of the Sexual Offences Act 2003 outlines the offences of rape, sexual assault, child sex offences etc. See also Rape and Sexual Offences - Overview and index of 2021 updated guidance.
12 - Child abuse
After seeing a surge in concerns about children experiencing domestic abuse, the NSPCC launched their Christmas campaign late November, to remind young people that Childline is available throughout the festive period. A child who sees or hears, or experiences the effects of, domestic abuse, and is related to the primary victim or offender is a victim of domestic abuse (see above).
Child abuse includes physical, emotional abuse and neglect. Section 1 of the Children and Young Persons Act 1933 creates offences relating to the mistreatment of a child or young person under 16 years, by a person of 16 years or more with responsibility for that younger person.
Final word
As can be seen above, there is a wealth of legislation that enables the police to deal with crime at Christmas. We hope you all keep safe and have a good Christmas.
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