ECCLESIASTICAL COURTS JURISDICTION ACT 1860

  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"; and

(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.

PUBLIC ORDER ACT 1986

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."

QUESTION POSED BY THE SELECT COMMITTEE

  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".

July 2002