"Public order has always been an area in which governments have been tempted to assert their authority by responding to particular events with legislation … " The enactment of legislation may, however, have more to do with "the symbolic affirmation of a political commitment to enforcing public order, maintaining public authority and expressing support for the agencies of control than it has to do with instrumental changes in criminal law. " Public Order is, conceptually, a very indistinct subject. A clear division between public order and all other criminal law is not possible.
Legal theorists may draw attention to two fundamental elements of public order law; its inchoate and participatory nature. The two are the only distinct differences between say; common law assault and public order affray. However, there are many criminal law offences which include these two elements; attempts, incitement and conspiracy, to name but a few. So in what way can public order laws be distinguished. To examine public order law per se, there is no real weighty distinction. In order to segregate it one must assume the eyes of the legislator.
Look at the motive of the legislation – what does the legislation aim to redress, or at least appear to redress. What is the mischief the legislature sought to cure, the motives differ very much in public order law and other branches of criminal law. Crime is a social construct for maintaining society: Crime; "act[s] or conduct prejudicial to the community the commission of which renders the person responsible liable to punishment1". Basically, society's rules to be followed, which maintain its hierarchy of authorities who make those laws which bind that community.
A circular argument really; The authorities design those rules to institutionalise their hierarchies (themselves). So essentially crime is the rules of those in power2. However, this is oversimplified. Those in power – specifically the government and legislature – cannot act unchecked. They must react to public opinion and media pressure – which ranges from actually establishing and guiding, to reporting – public opinion. Public order is almost always a reaction to this media influenced public opinion.
The extent to which the media can be included as one of those in power is beyond the remit of this essay. However, one would be foolish to ignore the inference that the media itself may, selfishly, as an institution of power, influence heavily the eventual enactment of public order legislation. It could be considered an indirect body 'in power' similar to the legislature: "One way … in which the British press functions for the contemporary political economy is by criminalizing resistance to the social order.
3" Placing its ability to set the agenda to one side, what it certainly does do is report public order issues, with a spin. The media is quick to report instances of public order, and in doing so it is beginning the public order issue. Mass lawlessness is very newsworthy, so newspapers throw every instance of it into the public opinion domain. This is not always done with the best sense. Such news is prone to hyperbole; an instance in 1964 was described as having 'no parallel in history4' when 'mods and rockers' fought and caused damage to Clacton.
Cohen describes such occurances as being cyclic; "societies appear to be subject, every now and then, to periods of moral panic5" which are usually caused by the youth; Punks in the 1970s and 1980s, drug associated in the 1990s. Cohen surmises the media reports the lawlessness as "a threat to societal values and interests … the moral barricades manned by editor's, bishops [and] politicians"6. The labelling of such groups as deviant leads them to favour a more divorced attitude to society and its principles, which in turn leads to heavier condemnation by the media – and so on.
This repetitive process of reactions to reactions has been coined a 'spiral of deviance amplification7'. As it spirals further and further, the hyperbolic reaction to hyperbolic headlines produces a moral panic. A press inflamed torch of public opinion outcry, augmented by the idea of a group; more threatening than the individual to the power of n. Football hooliganism is matched with a similar such panic, however, a more historically and politically telling paradigm is vagrancy. Historically, vagrancy arrives at the very heart of public order law.
Vagrant; "a person wandering without a settled home or means of subsistence8". This is the very antithesis of the social order, those that apparently have opted out of the hierarchy. It finds special resonance in capitalism. Beire surmises it brilliantly; "The masterless man represented mutability when those in power long for stability. He stood for poverty, which seemed to threaten their social and political dominance". So it becomes clearer that it is not merely the act of disorder but the nature of those involved.
Disorder is not feared solely as an act of catharsis, but more as a political disagreement, a political threat. Therefore, this mischief of public disorder has to be tackled by the forces in power, as it attacks their capitalist interests. Rioting is another disorder issue and often is presented as being the work of those 'vagrants'. 1981 Brixton was one of the most significant riots in recent history, and the press played its usual role: 'Black war on police' was the Mail's headline. Sumner surmised well the tabloid hyperbole as "an orchestrated criminal attack on law and order".
More truly the riots were caused by "social disadvantage, racism, police malpractice, relative depredation [and most importantly] political exclusion9. " The headlines of the newspapers influenced common perceptions of public opinion that the rioting was simply the 'fury of 'the mob10' thus abdicating the government of any political responsibility to redress social problems – which were the true causes of the rioting. Instead of sympathising with the victims of the socially underprivileged they create a moral panic, founded on the idea that the 'lawlessness' is "an index of the disintegration of the social order …
a sign that the 'British way of law' is coming apart. 11" Whether this is a political abdication of responsibility or rather political opportunism to capitalise from public 'mob' fears is unclear. When examining the legislative response it appears to be the latter. The 1986 Public Order Act frequently used 'ordinary language [in the] legislation'. This is an attempt to make legal definitions, at least at the level of rhetoric, correspond to popular understandings of the social problems to which law responds". "And thus can assure, popular fears of disorder as constructed by government and media12".
The definition of "violence13" – an element integral to the commission of offences in the legislation, such as riot, affray and violent disorder – "amounts to an invitation to define violence … in terms of conceptions constructed by the media, government and popular culture14". The legislation also left the police "in a position to define the situation as disclosing an offence in order to justify their actions15".
Clearly this is weak in jurisprudence and strong in political reactionism. This existed most notably in the case of Capon v. DPP 1998, where the offences of aggravated trespass and failing to leave land as soon as practicable (sections 68 and 69 CJPOA 1994) . Mead commented on the case; "it must be very difficult to 'know' that a direction has been given [to move off the land] if the police are permitted such wide and uncertain language16". On judicial reaction to the Public Order statutes of the 1980s and 1990s he described as; "a dangerous erosion of the freedom to protest peacefully17". It appears that peaceful protest and the groups which engage on this were a clear target of the legislation in question.