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Element of a statutory offence in England and Wales

Harassment, alarm or distress is an element of a statutory offence in England and Wales, arising from an expression used in sections 4A and 5 of the Public Order Act 1986, which created the offence. The Act was amended in 1994.

Clause (c) allows for a defence on the grounds of reasonable behaviour. This interpretation will depend upon case law. In Dehal v Crown Prosecution Service, Mr Justice Moses ruled that in cases involving freedom of expression, prosecution is unlawful unless it is necessary to prevent public disorder: "a criminal prosecution was unlawful as a result of section 3 of the Human Rights Act and Article 10 unless and until it could be established that such a prosecution was necessary in order to prevent public disorder". This case involved an individual placing a sign critical of religious leaders. Case law may go further and revolve around the prevention of violence. In considering another section 5 case, Lord Justice Auld quoted Redmond Bate v DPP (a case involving breach of the peace), "Free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence". However, in Abdul v DPP, Lord Justice Gross ruled that to some degree such rules were a matter of fact to be handled by lower courts and not a matter for appeal, stating "If the lower courts themselves approached the matter having duly considered all the relevant principles, the appellate courts will – also on established principles, applicable to appellate courts – be disinclined to interfere." noting that in Dehal v CPS the lower court had not considered Article 10 in any way. In a similar case, a defendant who displayed a poster saying "Islam out of Britain" was found guilty and denied appeal. (£1,000 as of 2015).

Sections 5(4) and (5) of the 1986 Act formerly provided a statutory power of arrest (which required a warning to be given beforehand). They were repealed by section 174 of, and Part 2 of Schedule 17 to, the Serious Organised Crime and Police Act 2005. Arrest for this offence is now governed by section 24 of the Police and Criminal Evidence Act 1984 (as substituted by the 2005 Act).

There were four to five thousand prosecutions for harassment, alarm or distress brought each year in England and Wales during the 2001–2003 period, with approximately three thousand cases resulting in conviction.

Section 4A of the Public Order Act 1986 creates the distinct, aggravated offence of intentional harassment, alarm or distress.

Section 31(1)(c) of the Crime and Disorder Act 1998 (c.37) creates the distinct offence of racially or religiously aggravated harassment, alarm or distress.