Public Order Offences: Section 4, 4A and 5 Explained

Sections 4, 4A and 5 of the Public Order Act 1986 are three separate offences covering threatening, abusive, or disorderly behaviour. Section 4 deals with causing fear or provocation of violence, section 4A with intentionally causing harassment, alarm, or distress, and section 5 with behaviour that is likely to cause harassment, alarm, or distress, with no intent to cause it required. They differ in what the prosecution must prove, the penalties available, and the defences that apply, so the exact charge matters.

These offences are among the most commonly charged public order matters in England and Wales, and they arise from everyday situations such as arguments outside pubs, disputes with neighbours, protests, and encounters with the police. This guide explains each section in plain English, how they differ, the defences available, and what to do if you have been arrested, issued with a penalty notice, or charged.

What Is the Public Order Act 1986?

The Public Order Act 1986 replaced the earlier Public Order Act 1936 and the common law offences of riot, unlawful assembly, and affray with a structured set of statutory offences. It sets out a ladder of seriousness, from riot and violent disorder at the top, through affray, to the lower level offences in sections 4, 4A, and 5.

Sections 4, 4A, and 5 sit at the lower end of that ladder, but a conviction can still lead to a criminal record, a fine, and in the case of sections 4 and 4A, a custodial sentence. All three offences can be committed in a public or private place, except where both the person behaving in the way alleged and the person affected are inside dwellings. This means some disputes between neighbours conducted inside their own homes can fall outside the offences.

Section 4: Fear or Provocation of Violence

Section 4 is the most serious of the three. It is committed when a person uses threatening, abusive, or insulting words or behaviour towards another person, or distributes or displays writing, signs, or other visible representations that are threatening, abusive, or insulting, and does so:

• With intent to cause that person to believe that immediate unlawful violence will be used against them or another, or to provoke the immediate use of unlawful violence by that person or another, or
• In circumstances where that person is likely to believe such violence will be used, or it is likely that such violence will be provoked

The word “immediate” matters. A threat of violence at some unspecified later time does not satisfy the section. The prosecution must also show that the defendant intended their words or behaviour to be threatening, abusive, or insulting, or was aware that they might be.

Section 4 is a summary only offence, meaning it is dealt with in the Magistrates’ Court. The maximum penalty is six months’ imprisonment, a fine, or both.

Section 4A: Intentional Harassment, Alarm, or Distress

Section 4A applies where a person, with intent to cause another person harassment, alarm, or distress, uses threatening, abusive, or insulting words or behaviour, or disorderly behaviour, or displays writing, signs, or other visible representations that are threatening, abusive, or insulting, and as a result causes that or another person harassment, alarm, or distress.

Two features distinguish section 4A from section 5:

• The prosecution must prove the defendant intended to cause harassment, alarm, or distress
• Someone must actually have been caused harassment, alarm, or distress, not merely be likely to be

Section 4A is also a summary only offence, with a maximum penalty of six months’ imprisonment, a fine, or both.

Section 5: Harassment, Alarm, or Distress

Section 5 is the lowest level of the three, and the one most often charged. It is committed when a person uses threatening or abusive words or behaviour, or disorderly behaviour, or displays writing, signs, or other visible representations that are threatening or abusive, within the hearing or sight of a person likely to be caused harassment, alarm, or distress by it.

An important change took effect in February 2014. Section 57 of the Crime and Courts Act 2013 removed the word “insulting” from section 5, following a public campaign about its impact on free speech. Since then, section 5 applies only to threatening or abusive conduct, although “insulting” remains in sections 4 and 4A.

There is no need to prove that anyone was actually distressed, only that someone within sight or hearing was likely to be. The defendant must intend their words or behaviour to be threatening or abusive, or be aware that they may be, or intend or be aware that their behaviour is disorderly.

Section 5 is summary only, and the maximum penalty is a fine at level 3 on the standard scale, currently £1,000. It carries no prison sentence.

How Do the Three Offences Differ?

What Defences Are Available?

The defences depend on the section charged and the facts. The main ones include:

• Conduct was reasonable. Sections 4A and 5 provide a defence where the defendant can show their conduct was reasonable in the circumstances, which is closely linked to the right to freedom of expression.
• No reason to believe anyone could see or hear. Under section 5, it is a defence to show the defendant had no reason to believe there was anyone within hearing or sight who was likely to be caused harassment, alarm, or distress.
• Inside a dwelling. Where the conduct took place inside a dwelling and the defendant had no reason to believe it would be seen or heard from outside any dwelling, a defence may apply under sections 4A and 5.
• Absence of the required mental element. The prosecution must prove the specific intent or awareness required by the section charged, and genuine doubt about that can lead to an acquittal.
• Human rights arguments. Articles 9, 10, and 11 of the European Convention on Human Rights, protecting freedom of belief, expression, and assembly, can be relevant where the case involves protest or the expression of opinion.

The defendant will often need to raise evidence supporting these defences, so it is important to give a solicitor a full account early.

What Does the Case Law Say About Free Speech and Protest?

Public order law sits at the boundary between protecting people from harm and protecting the right to express unpopular views, and the courts have addressed that balance in several cases.

Brutus v Cozens [1973] AC 854. The House of Lords held that “insulting” is an ordinary English word to be applied by the court as a matter of fact, and quashed the conviction of a protester who blew a whistle at a tennis match. It remains relevant to how “insulting” is interpreted under sections 4 and 4A.

DPP v Orum [1989] 1 WLR 88. The court held that a police officer can be a person caused, or likely to be caused, harassment, alarm, or distress, although an officer may be less easily distressed than an ordinary member of the public. This matters in the many cases where the only witness is an officer.

Percy v DPP [2001] EWHC Admin 1125. A protester was convicted under section 5 after defacing a US flag during a demonstration. The conviction was quashed because the court had not properly weighed the defendant’s right to freedom of expression under Article 10, and a conviction must be a proportionate response. It remains a leading authority on how human rights arguments apply in section 5 cases.

Norwood v DPP [2003] EWHC 1564 (Admin). The display of a poster in a window carrying a message hostile to Muslims led to a conviction for a racially aggravated offence. The court held that Article 10 did not protect the poster, and the European Court of Human Rights later declared the complaint inadmissible. It illustrates that expression which targets a group on racial or religious grounds receives limited protection.

What About Racially or Religiously Aggravated Offences?

Under the Crime and Disorder Act 1998, sections 4, 4A, and 5 each have racially or religiously aggravated versions. These apply where the offence is accompanied by hostility based on the victim’s membership of a racial or religious group, or the offence is motivated by such hostility.

The consequences are significant. Aggravated sections 4 and 4A offences can be tried in either the Magistrates’ Court or the Crown Court and carry a maximum of two years’ imprisonment on indictment, and aggravated section 5 carries a higher maximum fine. Even where the aggravated offence is not charged, courts are required to treat hostility as an aggravating factor when sentencing.

What Happens If You Are Arrested or Issued With a Penalty Notice?

For lower level offences, particularly section 5, the police may issue a penalty notice for disorder instead of arresting or charging. This is a fixed penalty that avoids a court appearance. It is not a conviction, but it can be recorded and disclosed in some circumstances, and paying it is not necessarily the right decision for everyone.

If you are arrested, the process mirrors other criminal investigations:

1. You are taken to a police station and entitled to free, independent legal advice before any interview. Our guide to police station representation explains why this matters.
2. The police will usually ask you about what was said or done, and may rely on body worn video, CCTV, and witness accounts.
3. Following the interview, you may be released with no further action, issued with a penalty notice or caution, or charged and required to attend the Magistrates’ Court.

Because these offences are summary only, they are heard in the Magistrates’ Court, usually within weeks or a few months of charge.

How Are These Offences Sentenced?

Sentencing in the Magistrates’ Court follows guidelines published by the Sentencing Council, which set out categories based on culpability and harm, and then adjust for aggravating and mitigating factors.

• Section 5 is punishable by a fine only, with outcomes ranging from a discharge to a fine reflecting the seriousness and the defendant’s means.
• Sections 4 and 4A can attract fines, community orders, or short custodial sentences in the most serious cases.
• Aggravating factors include use of a weapon or threat of one, targeting a vulnerable person, persistence, and hostility based on a protected characteristic.
• Mitigating factors include previous good character, provocation, genuine remorse, and an early guilty plea, which attracts credit under the guidelines.

A conviction creates a criminal record, which can matter for employment, particularly in roles involving working with children or vulnerable adults, and for travel to some countries.

What Should You Do Next?

1. Get legal advice before you speak to police in an interview, or before you respond to a penalty notice.
2. Write down your account of events as soon as you can, including who was present and what was said.
3. Identify and preserve evidence, such as phone footage, messages, and the names of witnesses.
4. Do not discuss the incident online or with the other person involved.
5. Ask your solicitor which section is being alleged, what the prosecution must prove, and whether any defence applies.

Getting Advice on a Public Order Charge

The difference between sections 4, 4A, and 5 is often the difference between a fine and a custodial sentence, and between a straightforward matter and one that raises genuine legal arguments about intent, free expression, and proportionality. Satchell Moran Solicitors’ criminal defence team advises on public order offences from the police station through to trial, including related allegations involving assault offences. The firm holds dual Lexcel accreditation, which reflects recognised standards in legal practice management and client care.

If you have been arrested, issued with a penalty notice, or told you will be charged, speak to a solicitor as early as possible.