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Chaos

Offended by facts.

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Chaos

 

Simon who is a registered sex offender leaves his property that he has not longer moved into and walks out into his street.

 

As he does so he overhears another resident in the street talking loudly to another saying "Look there he is, the sex offender!".

 

Simon gets worried that his offending history has gotten out to his new neighbors and as a result may get targeted. He is also worried that this resident of the street is telling others loudly about Simon history, he gets distressed enough to call the Police to report his neighbour.

 

So the question is, has any offences been committed by Simon's neighbour?

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Beaker

Unless there is some encouragement to commit an offence within the discussion I can't see anything. As in "There is Simon, he is a sex offender. Lets give him a kicking".

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Chaos
Unless there is some encouragement to commit an offence within the discussion I can't see anything. As in "There is Simon, he is a sex offender. Lets give him a kicking".
Agreed... However some colleagues are saying section 4A POA... Because Simon the sex offender is distressed that the neighbor is shouting loudly in the street to others about his history and he feels threatened...

Can shouting a "fact" about or at someone considered to be threatening... I don't think It can.

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Beaker

I'd likely log it as a non-crime for PVP purposes and move on.

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Sceptre

For an offence under S4A to occur, someone would have to use threatening, abusive or insulting words or behaviour, or disorderly behaviour, and with the intention to cause some person harassment, alarm or distress. They have a defence if they can prove that their conduct was reasonable. 

So the question isn't to do with whether it's true or not but the nature of the conduct measured against the definition of the offence - it would be nigh-on impossible to prove that two people have a normal conversation between themselves in the street was disorderly, threatening, abusive or insulting because quite simply it's not. Even someone who went around telling their neighbours to keep an eye on their kids around that Simon from number 1 might honestly believe not without some foundation that that was a reasonable thing to do. If on the other hand every time Simon leaves his house then the two neighbours pause their conversation to shout comments like nonce or paedo at him then clearly that is abusive behaviour calculated to make him feel a certain way and which is not at all reasonable no matter how true it may be. 

As well as public order offences you may also wish to consider harassment, and the specific offence of harassment of a person in his home under S42A CJPA 2001. For conduct to amount to harassment it must involve an element of oppression (R v O'Neill 2016) but conduct which began as legitimate can nonetheless become criminal harassment due to persistent or the manner of its pursuit (DPP v Hardy 2008). On a single incident as described however neither of these offences could be made out. 

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Lone Wolf
7 hours ago, Sceptre said:

For an offence under S4A to occur, someone would have to use threatening, abusive or insulting words or behaviour, or disorderly behaviour, and with the intention to cause some person harassment, alarm or distress. They have a defence if they can prove that their conduct was reasonable. 

So the question isn't to do with whether it's true or not but the nature of the conduct measured against the definition of the offence - it would be nigh-on impossible to prove that two people have a normal conversation between themselves in the street was disorderly, threatening, abusive or insulting because quite simply it's not. Even someone who went around telling their neighbours to keep an eye on their kids around that Simon from number 1 might honestly believe not without some foundation that that was a reasonable thing to do. If on the other hand every time Simon leaves his house then the two neighbours pause their conversation to shout comments like nonce or paedo at him then clearly that is abusive behaviour calculated to make him feel a certain way and which is not at all reasonable no matter how true it may be. 

As well as public order offences you may also wish to consider harassment, and the specific offence of harassment of a person in his home under S42A CJPA 2001. For conduct to amount to harassment it must involve an element of oppression (R v O'Neill 2016) but conduct which began as legitimate can nonetheless become criminal harassment due to persistent or the manner of its pursuit (DPP v Hardy 2008). On a single incident as described however neither of these offences could be made out. 

😊

The O'Neill judgement is worthwhile knowing inside out, especially as it effectively opposes the NCRS qualifications for recording harassment as an offence.  You can write off so much rubbish by quoting it.

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Hyphen
On 01/04/2019 at 04:28, Chaos said:

 

 

Simon who is a registered sex offender leaves his property that he has not longer moved into and walks out into his street.

 

As he does so he overhears another resident in the street talking loudly to another saying "Look there he is, the sex offender!".

 

Simon gets worried that his offending history has gotten out to his new neighbors and as a result may get targeted. He is also worried that this resident of the street is telling others loudly about Simon history, he gets distressed enough to call the Police to report his neighbour.

 

So the question is, has any offences been committed by Simon's neighbour?

 

From the scenario no offences committed and no crimes.

People can have conversations, even if someone is offended by what is said it isn’t an offence.

However, if reported to the police some sort of safeguarding would likely need to be considered, possibly a referral in to local NPT or the like.

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Hyphen
10 hours ago, Lone Wolf said:

😊

The O'Neill judgement is worthwhile knowing inside out, especially as it effectively opposes the NCRS qualifications for recording harassment as an offence.  You can write off so much rubbish by quoting it.

I have seen it mentioned before. I’ve done some reading on it too and agree that the vast majority of things that get recorded as harassment crimes don’t go anywhere near enough and certainly aren’t oppressive.

The problem is that as soon as someone alleges the other has sent multiple messages or made multiple phone calls a crime gets put on. If there is a DV marker hysteria takes over and people end up brought in anyway.

The harassment act is one of the most abused and misunderstood pieces of legislation we have. 

What I find strange is no one seems to know about the O Neill judgement and it never seems to be applied, obviously I know that may be different in different forces.

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Reasonable Man
I have seen it mentioned before. I’ve done some reading on it too and agree that the vast majority of things that get recorded as harassment crimes don’t go anywhere near enough and certainly aren’t oppressive.
The problem is that as soon as someone alleges the other has sent multiple messages or made multiple phone calls a crime gets put on. If there is a DV marker hysteria takes over and people end up brought in anyway.
The harassment act is one of the most abused and misunderstood pieces of legislation we have. 
What I find strange is no one seems to know about the O Neill judgement and it never seems to be applied, obviously I know that may be different in different forces.

You show the confusion between what is recorded as a crime and what can be proven to be a crime. The Home Office Counting Rules say a notifiable crime must be recorded when the circumstances as described amount to that crime - unless there is credible evidence to the contrary immediately available.
NCRS is a part of HOCR that states that a victim oriented approach must be taken in crime recording.
This is easy in most crime types as ‘someone nicked my car/phone/wallet/dog’ in the absence of credible evidence to the contrary = a crime of theft to record. Equally ‘someone has punched/kicked/pushes/stabbed me’ = a crime of assault to record.
With harassment, Mal Comms and some public order crimes there is some subjectivity around what amounts to ‘real’ harassment, alarm, distress. This is complicated by some cases having to have the intent and some others where the victim has to suffer, and in some of those cases there is a mismatch between what the suspect, victim, police officer dealing and anyone else might be in whether the words or behaviour amounted to H/A/D.
So while O’Neill is a useful barometer as to where the criminal threshold may be met it is for courts to consider cases stated when dealing with other cases. For crime recording it is about what the victim has reported and considers is the effect on them. If a victim reports a course of conduct that has caused them alarm or distress then unless it can be proven that it didn’t the crime must be recorded.
Crime recording is at the beginning of the process. Too many officers spend too long playing the part of the appeal court judge trying to show that something isn’t a crime at first report stage. Record the crime, gather and assess the evidence, or decide that it’s too trivial to bother with and file it. O’Neill, and other cases stated only come in at charging decision stage.

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Hyphen

I do agree with you RM, I get the majority of the crime recording rules as per the other debates that there have been on the site around crime recording.

My whining was more about the way those recorded crimes are handled and approached, particularly where there is a DV marker. Many supervisors seem to lose all perspective despite there being no actual crime or any prospect of proving an offence.

Anyway, sorry, I am taking it off topic, back to topic...

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Mazza

Reasonable Man, I do not know a lot about English law, but just my two penneth worth - are the laws relating to this sort of offence not written in the fashion of whether a “reasonable person” would find it alarming or distressing?

If we were looking at this in Scotland it would be a Section 38 offence of threatening and abusive behaviour to be considered, but as it’s neither threatening nor abusive (because it’s factual), and a reasonable person would not perceive it as such, I would be No Criming that. I appreciate it’s a different law south of The Wall but it’s interesting that in circumstances like these, a crime might be raised effectively because someone was offended.

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Chaos

 

 

Mazda, you hit the nail on the head for me. This is a real life scenario that someone had put to me because they didn't know if to crime it or not... I advised them not to as I did not believe that stating a fact could be considered as threatening... However they argued that the victim Simon perceived that his neighbour telling people in the street in the presence and sight of Simon was intentional and Simon felt threatened enough to call the police in fear of reprisals.

 

Saying that it was crimed as a section 4a but they met me half way and filed it straight away as not being in the public interest.

 

 

 

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Reasonable Man
Reasonable Man, I do not know a lot about English law, but just my two penneth worth - are the laws relating to this sort of offence not written in the fashion of whether a “reasonable person” would find it alarming or distressing?

If we were looking at this in Scotland it would be a Section 38 offence of threatening and abusive behaviour to be considered, but as it’s neither threatening nor abusive (because it’s factual), and a reasonable person would not perceive it as such, I would be No Criming that. I appreciate it’s a different law south of The Wall but it’s interesting that in circumstances like these, a crime might be raised effectively because someone was offended.

There is the ‘reasonable man’ consideration but, as I said, in these type of crimes it’s is subjective. Who decides what this reasonable person would think? It’s usually the officer saying they don’t think it’s offensive/harassing/distressing etc. This is why the NCRS made crime recording victim oriented and under that standard the victim is believed unless there is credible evidence that there was no crime in law.
As for this type of case it’s not as simple as what was said, it’s down to how it was said and in what context. Why did the suspect say what he said? Why did he say it loudly? Has he said it before? Does he say it every time? There’s a difference between him one one occasion calmly saying it to the person with him and every time he sees the reporting person he loudly tells anyone in earshot ‘There’s the sex offender.’

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