GREG HEROLD-HOWES
Many people assume that if someone is drunk in public and behaving badly, they will automatically be guilty of being drunk and disorderly.
The law is more precise than that.
The offence requires more than intoxication, more than bad manners and more than being difficult to deal with. Recent proceedings in the Magistrate’s Court, in which our client was acquitted, serve as a useful reminder that there remains an important distinction between behaviour that is unattractive and behaviour that is criminal.
The offence
To prove a charge of being drunk and disorderly, the prosecution must establish both that:
- the defendant was drunk; and
- the defendant’s conduct was disorderly.
The first question is often relatively straightforward. The second is frequently where the real issue lies.
The Courts have repeatedly recognised that disorderly conduct is not established simply because a person has consumed alcohol, is argumentative, uses offensive language or refuses to accept what they are being told.
There must be conduct which crosses the threshold into genuine disorder.
What does ‘disorderly’ mean?
The authorities make clear that the Court is concerned with the nature and effect of the behaviour.
Examples which may point towards disorderly conduct include:
- shouting, screaming or creating a disturbance in a public place;
- conduct which causes alarm or distress to members of the public;
- behaviour likely to provoke violence or a breach of the peace;
- obvious loss of self-control or coordination affecting those around the individual.
The question is ultimately an objective one. The Court must consider what actually occurred and whether the conduct was sufficiently serious to amount to disorderly behaviour in law.
What might not be enough?
Cases of this sort often include allegations that a person was:
- argumentative with police officers;
- refusing to accept directions or advice;
- swearing;
- talking over others;
- belligerent or confrontational;
- generally unpleasant to deal with.
Such behaviour may be irritating. It may make an officer’s job more difficult. It may even justify police intervention in certain circumstances. However, behaviour of this sort does not always, without more, establish the offence.
The criminal law does not punish a poor attitude. Nor does it punish every instance of drunken foolishness.
There remains a distinction between conduct that is objectionable and conduct that is disorderly.
The importance of context
When considering whether behaviour is disorderly, the Court will look closely at the surrounding circumstances.
- Was anyone actually alarmed?
- Were members of the public affected?
- Was there any realistic prospect of violence or a breach of the peace?
Did the individual lose control of their actions to such an extent that public order was genuinely affected?
These are often the questions that determine the outcome of a case.
It is not uncommon for the prosecution to prove intoxication but struggle to establish the additional element of disorderliness. However, the line between ‘difficult’ and ‘disorderly’ is a fine one, easily overstepped when intoxicated.
Why this matters
The offence plays an important role in protecting public order. Equally, it is important that the boundaries of the offence are respected.
If being drunk, argumentative or rude were enough on their own, the offence would extend far beyond its intended scope.
The Courts have therefore continued to require proof of conduct that genuinely affects public order, rather than simply behaviour that is annoying, offensive or embarrassing.
That distinction can be easy to overlook in the heat of an incident, but it remains central to the proper application of the law.
Final thoughts
Every case turns on its own facts. What amounts to disorderly conduct in one situation may not do so in another.
The important point is that the offence requires more than intoxication and more than poor behaviour. The prosecution must prove conduct that objectively crosses the threshold into disorder.
That remains an important safeguard, both for the public and for the proper administration of justice.
