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Certain controversial and seemingly ill defined and subjective provisions like s4a or S5 public order offences, or anti social Behaviour legislation rely on terms like harassment alarm and distress. These terms seem to inherently lend themselves to being innocently or willfully misunderstood by police in the field and gives them wide latitude to police people's behaviour and expressions in public.

Surely these fuzzily defined terms must have come under scrutiny and challenge in the courts somewhere and courts must have clarified them to limit their scope of restriction upon people's freedom.

What exists in the way of narrowing down the definitions of these controversial terms? Must the distress be severe over a certain threshold criteria to qualify? Must alarm encompass a realistic fear of actual injury? Must harassment specifically be a series of multiple acts over a certain period of time?

And what of the question of reasonableness? My grandma might be shocked and morally disgusted at me not wearing a shirt, but most people of my generation wouldn't be. Whose sensibilities then are reasonable?

In summary it seems that anything could be deemed by someone to be antisocial behaviour or to be "reasonably causing" "harassment alarm or distress" to another person/group/household. What limits are there to curtail this potentially boundless and abuse-prone breadth of reach?

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Harassment, alarm and distress are for the trier of fact to define

That is, whether particular behaviour in a particular case amounts to harassment, alarm or distress is a question of fact, not law. That is, it is for the trier of fact (jury or judge as applicable) to consider the evidence and decide if the prosecution has proved beyond reasonable doubt (another term they must define for themselves) the actions of the defendant amounted to harassment, alarm or distress within the context of the crime charged.

The Crown Prosecution Service has this guide to help decide if charges should be brought. With reference to s5 of the Public Order Act (s4A is a more severe version of this crime):

Disorderly behaviour does not require any element of violence, actual or threatened; and it includes conduct that is not necessarily threatening or abusive. It is not necessary to prove any feeling of insecurity, in an apprehensive sense, on the part of a member of the public (Chambers and Edwards v DPP [1995] Crim LR 896).

There is a defence of reasonableness to these crimes and that, too, is for the trier of fact to determine using the legally objective test:

Hammond v DPP [2004] EWHC 69 (Admin): It was open to justices to find that signs referring to homosexuality and lesbianism as immoral were “insulting” and, having taken into account the defendant’s rights under Articles 9 and 10, to find that his behaviour in displaying them was not reasonable

Gough v DPP [2013] EWHC 3267 (The naked rambler case) The District Judge had been entitled to find that the defendant’s conduct in walking through a crowded street was “disorderly” and that prosecution was a proportionate response which did not violate his rights under Article 10.

NB both the above cases were decided before the amendment to the Act which removed the “insulting” limb under section 5.

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  • Let's clarify firstly that harassment alarm and distress appear to be conceptualised by the laws as reactions to one's behaviours, rather than types of behaviours themselves.
    – Joseph P.
    Sep 22 at 22:18
  • Otherwise, excellent answer in my opinion.
    – Joseph P.
    Sep 22 at 22:34
  • @JosephP. Um, no. They incorporate both the action and the reaction.
    – Dale M
    Sep 22 at 22:45
  • Think the wording is pretty clear in the words being used in the context of those states being "caused". The offence is causing h a & d, not "committing" h a & d.
    – Joseph P.
    Sep 22 at 22:48
  • @JosephP. Yes but there must be intent by the perpetrator and the law does not require that HAD actually be caused, just that it would cause it in a reasonable person
    – Dale M
    Sep 23 at 5:21

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