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1 J. Rts. & Just. 4 (2020)
Should There Be a Tort for Section 4A of the Public Order Act 1986?

handle is hein.journals/jrgtjst1 and id is 4 raw text is: SHOULD THERE BE A TORT FOR SECTION 4A OF THE PUBLIC ORDER ACT 1986? MARTIN KWAN* ABSTRACT Where a person is insulted and distressed by a wrongdoer who intentionally causes him/her distress, the act constitutes a criminal offence under s 4A of the Public Order Act 1986. This article argues that there is no actionable tort for the insult under the current English law. The only way to seek private recourse is to have a private prosecution (assuming there is not a public one). Whilst this can lead to a compensation order, there are shortcomings with this option. It will then explore whether the misconduct in s 4A POA should be recognised as actionable in tort. It is argued that the misconduct constitutes a private wrong. Furthermore, other jurisdictions have comparable torts. Therefore, Parliament should consider introducing a statutory tort. INTRODUCTION Where a person is insulted by a wrongdoer who intentionally causes him/her distress or alarm, and the victim feels distressed as a result, the act constitutes a criminal offence under s 4A of the Public Order Act 1986 (POA). The natural question that follows is whether the victim can have any private recourse against the offender, especially when the victim has suffered harm in the form of distress. Robert Stevens commented that the law of insults is interesting both comparatively and, more importantly, theoretically, because there is not a specific tort of insult under English law; whilst the laws of other jurisdictions make it actionable.' Whilst this article is not a comparative law analysis, it is partly inspired by the Singaporean Protection of Harassment Act (2014), which has made its s 4A POA- equivalent both a criminal offence and a tort. This article thus explores whether the existing English common law doctrines can provide any cause of action for insults. It will be concluded that there is no actionable tort. Despite so, it will be noted that * LLB (Lond.), LLM (LSE). 1Robert Stevens, 'Private rights and public wrongs', in Matthew Dyson (ed), Unravelling Tort and Crime (CUP 2014) 111, 137. 4