Rereading the Riot Act

In light of recent rioting across England, Colin Wynter QC believes a sympathetic application of a strict law can be necessary for victims of crime.

Colin Wynter QC
Colin Wynter QC

Looking out, wine glass in hand, from the safety of my 40th floor eyrie at the plumes of smoke rising haphazardly above various parts of South London, and imagining the looting and damage to property being caused by roaming packs of looters, it occurred to me that the drafters of the 1886 Riot (Damage Act) could not have chosen a more felicitous expression than they did for what was happening now, some 115 years later – ’riot and tumultuous assembly’. ’Tumultuous assembly’ conveys perhaps more than ’riot’ does the chaotic menace of the baying, looting mob.

The Riot Act is, though, of more interest than just to pedant lawyers admiring a pretty turn of phrase. It is the means by which society underwrites the financial investment required to restore the physical fabric of our towns and cities following episodes of social breakdown such as those recently witnessed.

The underlying principle is that the police are responsible for the maintenance of law and order. The happening of a riot or tumultuous assembly is proof positive that law and order has broken down, and for that the police are notionally held responsible.

As Lord Justice Longmore observed  in Bedfordshire Police Authority v DA Constable & Ors (2009), “the reason for the 1886 Act placing the burden of paying compensation to the victims of riot damage on the police authority is that the police are responsible for law and order and ….they are (notionally) in breach of that responsibility” when riot or tumultuous assembly take place.

The Act provides for the ’police fund’ to pay compensation to any person who has sustained loss by injury to property, stealing or destruction. It also provides for the payment of compensation to insurers “in respect of the sum so paid (by insurers) in like manner as if he (the insurer) had sustained the said loss”.

The Act is brilliant in its conception. Enacted 500 years too late to assist shopkeepers who lost their properties and livelihoods during the 1381 Peasants’ Revolt, is the Act an adequate fix for the current troubles? I would have asked ’is it fit for purpose?’, but the politicians, beginning with John Reid, have stolen that expression.

Nevertheless, the answer is both “yes” and “no”.

Riot has been redefined in the 1986 Public Order Act: “Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.”

What, under the law, is the status of the of the damage caused by an eight-strong group that breaks away from a 100 strong mob attacking an electrical retailer in order to raid a top-class florist, half a mile away from the main riot?

The level of compensation payable under the Act is fixed having regard to the “conduct of the [claiming] person, whether as respects the precautions taken by him or as respects his being a party or accessory to such riotous or tumultuous assembly, or as regards any provocation offered to the persons assembled or otherwise”.

The level of compensation can therefore be reduced for, among other things, a lack of suitable precautions and provocation to the assembled mob. Where does this leave the shopkeeper who stays open while other shops board up only to have his shop ransacked? And what of the shopkeeper who stands outside his shop defiantly brandishing a baseball bat at a rioter only to suffer a terrible beating and torching of his shop for his troubles?

Should these individual acts of commercial commitment and bravery attract a penalty by way of reductions in compensation? If one believes that society should encourage the expression of these traits, particularly when societal order is threatened, then a sympathetic application of the strict law, if not its review, is necessary.

Colin Wynter QC is a barrister at Devereux Chambers