Halloween mask causes distress?

OK, own up! How many of you have ever worn a halloween mask? How about your children or grandchildren? We suggest you collect up all such masks and recycle them forthwith (What! Michael doesn't recycle rubber?), or hide them and hope that there's a mask amnesty sometime soon. The police are onto you!

A Hafod protester has been issued with an £80 fixed penalty notice for an alleged offence under Section 5 of the Public Order Act 1986 which took place two months ago. The notice states that he, "along with others blocked gate at Hafod quarry preventing lorries from leaving whilst wearing halloween mask causing harassment alarm and distress to drivers and staff."

One of the protesters present on that morning, a week or so before Halloween, describes a scenario where protesters wearing halloween masks peacefully blockaded the gates while some wagons were inside. They stood silently in front of the gates until the police arrived, at which point and without being asked, they removed their masks and ended the blockade. The police made no mention of the masks at the time, nor did anyone mention being alarmed or distressed.

For those of you unfamiliar with the Public Order Act 1986, this is what Section 5 says:

5 Harassment, alarm or distress

(1) A person is guilty of an offence if 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,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

(2) An offence under this section may 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 the other person is also inside that or another dwelling.

(3) It is a defence for the accused to prove-

(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or

(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(c) that his conduct was reasonable.

(4) A constable may arrest a person without warrant if-

(a) he engages in offensive conduct which [a] constable warns him to stop, and

(b)he engages in further offensive conduct immediately or shortly after the warning.

(5) In subsection (4) "offensive conduct" means conduct the constable reasonably suspects to constitute an offence under this section, and the conduct mentioned in paragraph (a) and the further conduct need not be of the same nature.

(6) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Here's what the Crown Prosecution Service has to say on the matter:

"There must be a person within the sight or hearing of the suspect who is likely to be caused harassment, alarm or distress by the conduct in question. A police officer may be such a person, but remember that this is a question of fact to be decided in each case by the magistrates. In determining this, the magistrates may take into account the familiarity which police officers have with the words and conduct typically seen in incidents of disorderly conduct. (DPP v Orum [1988] Crim LR 848.)

Although the existence of a person who is caused harassment alarm and distress must be proved, there is no requirement that they actually give evidence. In appropriate cases, the offence may be proved on a police officer's evidence alone.

Police officers are aware of the difficult balance to be struck in dealing with those whose behaviour may be perceived by some as exuberant high spirits but by others as disorderly. In such cases informal methods of disposal may be appropriate and effective; but if this approach fails and the disorderly conduct continues then criminal proceedings may be necessary."

And this is from the freebeagles web site:

Under Section 2 of the Criminal Justice and Police Act 2001, the police can issue fixed penalty notices where they suspect that a "penalty offence" has been committed. The relevant "penalty offences" are listed in Section 1 of the Act, and are mostly aimed at dealing with minor drunk / disorderly behaviour. But they also include Section 5 Public Order Act 1986 and this is the offence which is most likely to be used against activists.

Section 2 (1) of the Act states that a constable who has reason to believe that a person aged 16 or over has committed a penalty offence may give him a penalty notice in respect of the offence. The procedure is then very similar to many road traffic offences. The person who has received the notice has 21 days in which either to pay the penalty or to request to be tried for the offence.

If you pay the penalty, then no further proceedings may be brought for the offence, and the penalty will not form part of your criminal record. If you request to be tried, then the case may go to trial. If the penalty is not paid and no request is made to be tried within 21 days, then normally the penalty goes up by half and is dealt with just like any other fine. But the police may then charge you with an offence in exceptional circumstances eg if the offence turns out to be more serious than originally thought, or they discover you have convictions for similar offences.

There is no requirement to give a warning before issuing a penalty notice (although for Section 5 offences the police are encouraged to do so, see below). There appears to be no time limit for the issue of fixed penalties. They will probably usually be issued around the time of the offence, but could be issued at a police station after arrest and in theory any time up to 6 months after the date of the offence.

The penalties are divided in to "upper" and "lower tiers". "Upper tier" offences attract a penalty charge of £80, "lower tier" offences £40. Section 5 is an "upper tier offence". The use of penalty notices was trialed by five police forces between August 2002 and July 2003. The Home Office issued guidance notes to the police for when and how they should use the notices and how they should exercise their discretion. These are worth reading and can be downloaded on the internet from here: http://www.homeoffice.gov.uk/crimpol/police/penalty/index.html

The Home Office notes state that with regard to Section 5 offences, the police should consider giving a warning first and that also they should bear in mind the statutory defences to Section 5. These include the defence that your conduct was reasonable and that you were not aware that your conduct was "threatening, insulting or abusive". Reading between the lines, it seems that the Home Office are not keen on the police issuing fixed penalties for each and every instance of minor disorderly conduct. But the guidance notes are not legally binding and ultimately it is a matter of discretion for the individual officer.

The police have already started to use this power against activists. It remains to be seen whether use of these penalties is part of the government's new offensive against animal rights "extremists". In our opinion this could well be the case.

Whether activists should pay them or not will depend on the circumstances. Often protestors will want to fight them in court for example where they have been issued with a penalty notice for banging a drum or blowing a whistle. In situations where there is no basis for a Section 5 charge, the CPS may well decide not to prosecute you anyway.

On the other hand there will be times when someone might want to pay the penalty for example if he has been involved in serious disorder. Once the penalty is paid the police cannot take any further action for the offence.

So, it appears that the police have powers to issue fixed penalty notices in cases where the Crown Prosecution Service might not take the case to court. Mmmm. And why now? Only a cynic would say that this is an attempt to make people fearful of taking part in protests at the site.

If the protester asks for the case to be tried, and if the CPS agrees that it should be tried, it's going to make for an interesting court case.