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The Reasonable Conduct Defence: When Public Order Act Charges Can Be Beaten

Published 9 July 2026

In 2011, a man was stopped by police outside a block of flats in Liverpool. He had been swearing — loudly, colourfully. The magistrates convicted him under section 5 of the Public Order Act. But the High Court quashed the conviction. Why? Because there was no evidence anyone was actually present to hear the swearing. The man was swearing in frustration, not at anyone. And the court held that, in those circumstances, his conduct was reasonable. The case — Harvey v DPP [2011] EWHC 3990 (Admin) — illustrates a principle that matters for anyone charged under the POA: even if the prosecution proves every element, you can still walk free if your conduct was reasonable.

Disclaimer: General information, not legal advice. Speak to a solicitor if charged.

Jurisdiction: England and Wales. Scotland and NI have separate legislation.

The Reasonable Conduct Defence: What Courts Consider CONTEXT Protest? Sport? Street? TARGETING Specific person or general? PROPORTIONALITY Response matched trigger? CRITICAL: The DEFENDANT must prove the defence on the balance of probabilities Not the prosecution. If the court is unsure, the defence fails. Available for ss.4A and 5 — NOT s.4. Sources: Harvey v DPP [2011]; Percy v DPP [2001]; POA 1986, ss.4A(3)(b), 5(3)(c)
Three factors, one critical rule: the defendant must prove reasonableness — the prosecution does not have to disprove it.

Where the Defence Comes From

Section 5(3)(c) and s.4A(3)(b) provide that it is a defence for the accused to prove "his conduct was reasonable." Section 4 has no such defence. The burden is on the defendant — on the balance of probabilities. This is unusual in criminal law and is a significant practical hurdle.

What "Reasonable" Means

Courts weigh context (where and why), targeting (specific person or general frustration), duration (single outburst or sustained tirade), proportionality (did the response match the trigger), and Article 10 (political expression gets stronger protection). In Percy v DPP [2001] EWHC 1125 (Admin), a protester who defaced a US flag had her conviction upheld — the political context did not save her because the manner of expression was unreasonable. In Harvey, the absence of an audience was decisive.

Practical Takeaways

  1. The defence is available for ss.4A and 5 — not s.4.
  2. You must prove it — on the balance of probabilities.
  3. Context is everything. Harvey and Percy reached opposite results.
  4. Political protest gets stronger protection under Article 10.
  5. Get a solicitor. This defence turns on specific facts.

Sources

  • Public Order Act 1986, ss.4A(3)(b), 5(3)(c) — legislation.gov.uk
  • Harvey v DPP [2011] EWHC 3990 (Admin)
  • Percy v DPP [2001] EWHC 1125 (Admin)

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