Supplementary memorandum from the Home
Section 2 of this Act penalises:
(a) any person guilty of "riotous, violent
or indecent behaviour" in any cathedral church, parish or
district church or chapel of the Church of England or in any chapel
of any religious denomination or in any certified place of religious
worship, "whether during the celebration of Divine service
or at any other time, or in any churchyard or burial ground";
(b) any person who shall "molest, let,
disturb, vex or trouble, or by any other unlawful means disquiet
or misuse" any preacher duly authorised to preach therein
or any clergyman in holy orders ministering or celebrating any
sacrament or any Divine service, rite or office in any cathedral,
church or chapel, churchyard or burial ground.
In the context of (a) "indecent" is
not referring to anything in the nature of intending to corrupt
or deprave, nor used with any sexual connotation. It is used in
the context of "riotous, violent or indecent behaviour"
within the category of creating a disturbance in a sacred place.
Section 1 (Riot)
This section provides that: "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, each of the persons
using unlawful violence for the common purpose is guilty of riot."
Section 2 (Violent disorder)
This section provides that: "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, each of the persons using or threatening
unlawful violence is guilty of violent disorder."
Section 3 (Affray)
Under this section "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."
Section 4 (Fear or provocation of violence)
Under this section "A person is guilty
of an offence if he
(a) uses towards another person threatening,
abusive or insulting words or behaviour, or
(b) 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."
Sections 4A and 5 (Harassment, alarm or distress)
Section 4A (inserted by section 154 of the Criminal
Justice and Public Order Act 1994) creates a summary offence consisting
of the intentional causing of harassment, alarm or distress to
another person by (a) the use of threatening, abusive or insulting
words or behaviour, or disorderly behaviour, or (b) the display
of any writing, sign or other visible representation which is
threatening, abusive or insulting. Section 5 creates a lesser
offence of a similar kind but, under this section, there is no
requirement to prove intent; it is sufficient that the words,
behaviour or display are likely to cause harassment, alarm or
distress to a person who is present.
Section 40(4) (Breach of the peace)
This section provides that nothing therein affects
the common law powers in England and Wales to deal with or prevent
a breach of the peace. In R v Howell, the Court of Appeal held
that there is a breach of the peace "whenever harm is actually
done or is likely to be done to a person or in his presence to
his property or a person is in fear of being so harmed through
an assault, an affray, a riot, unlawful assembly or other disturbance."
The Committee asked whether s.2 of the Ecclesiastical
Courts Jurisdiction Act 1860 (ECJA) covers activities that would
not otherwise constitute offences under the Public Order Act (POA).
2. As the above provisions illustrate, there
would be a very substantial overlap between the ECJA provision
and various public order offences. In particular, s.5 of the POA
is broad and general, covering disorderly behaviour, as well as
threatening, abusive or insulting words or behaviour. It seems
to us that "riotous" or "violent" behaviour
by an individual for the purpose of s.2 of the ECJA would not
be susceptible for handling under sections one or two of the POA,
whereas such behaviour by "12 or more persons" (s.1)
or "three or more persons" (s.2) present together might
be. Sections 3 and 4 of the POA might, but would not necessarily,
catch the sort of behaviour by individuals that is currently punishable
under s.2 of the ECJA.
3. The general context of the ECJA seems
to be that of creating a disturbance in a sacred (as opposed to
any other) place and to that extent, offences contrary to s.2
of the Act could perhaps be prosecuted under the common law as
breaches of the peace. The provision of the POA could of course
be extended to cover the type of offences punishable under s.2
of the ECJA but it would not seem sensible to repeal existing
provisions only to replicate them elsewhere.
4. In short it seems to us that s.2 of the
ECJA does cover activities that would not otherwise constitute
offences under the POA (although it is difficult to cite specific
examples). The Law Commission, in their 1985 report, certainly
seemed to think so and said that Churches and similar places,
together with acts of worship, were "arguably in a unique
situation which requires the availability of special provisions
in the criminal law".