Public order offence ascertaining witness and victim

12 July 2021

Not reviewed after the date of publication

Question: 

I have a question regarding an incident of racially aggravated public order. The circumstances are as follows:

The suspect intentionally made a racially aggravated remark towards the subject in a public place;

The subject was present but did not hear the remark;

The remark was heard by a third party bystander who felt aggrieved by the statement;

There is bodyworn footage showing the suspect saying the remark towards the subject, with the bystander also present.

In this instance, would the victim be the third party bystander, instead of the intended subject?  And would the intended victim become a witness?

Answer:

The offence in section 4A of the Public Order Act 1986 can be committed where the offence is directed at one person, but it is another person who is caused harassment, alarm or distress.

Provided the racially aggravated remark constitutes “threatening, abusive or insulting words or behaviour, or disorderly behaviour” and you can prove it was made with intent to cause a person (‘A’) harassment, alarm or distress, then the fact that harassment, alarm or distress was not caused to person A but another person B still means that the offence in section 4A has been committed. See the words at the end of section 4A (in bold).

4A(1) 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.

As you state that it was a racially aggravated remark, the offence is under section 31(1)(b) of the Crime and Disorder Act 1998.

IN our view, person B would then be the victim of the offence. If person A has not even heard the remark, that person would more likely be considered a witness.

You could consider a charge under section 5 of the Public Order Act 1986 and section 31(1)(c); section 31(7) provides that both persons would then be victims of the offence. However, the penalty for the offence under section 31(1) and section 5 is only a fine.

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