Whether behaviour can be properly categorised as disorderly is a question of fact. Disorderly behaviour does not require any element of violence, actual or threatened; and it includes conduct that is not necessarily threatening, abusive or insulting. It is not necessary to prove any feeling of insecurity, in an apprehensive sense, on the part of a member of the public (Chambers and Edwards v DPP [1995] Crim LR 896). The following types of conduct are examples, which may at least be capable of amounting to disorderly behaviour:

causing a disturbance in a residential area or common part of a block of flats;
persistently shouting abuse or obscenities at passers-by;
pestering people waiting to catch public transport or otherwise waiting in a queue;
rowdy behaviour in a street late at night which might alarm residents or passers-by, especially those who may be vulnerable, such as the elderly or members of an ethnic minority group;
causing a disturbance in a shopping precinct or other area to which the public have access or might otherwise gather;
bullying.
Section 5 should be used in cases which amount to less serious incidents of anti-social behaviour. Where violence has been used, it is not normally appropriate to charge an offence under section 5 unless the physical behaviour amounts merely to pushing or undirected lashing out of a type likely to cause no more than a glancing blow, minor bruising or grazing. Such conduct may also be classified as disorderly and suitable for a charge under section 91 CJA 1967 in appropriate circumstances.

There must be a person within the sight or hearing of the suspect who is likely to be caused harassment, alarm or distress by the conduct in question. A police officer may be such a person, but remember that this is a question of fact to be decided in each case by the magistrates. In determining this, the magistrates may take into account the familiarity which police officers have with the words and conduct typically seen in incidents of disorderly conduct. (DPP v Orum [1988] Crim L R 848).

Although the existence of a person who is caused harassment alarm and distress must be proved, there is no requirement that they actually give evidence. In appropriate cases, the offence may be proved on a police officer’s evidence alone.

Police officers are aware of the difficult balance to be struck in dealing with those whose behaviour may be perceived by some as exuberant high spirits but by others as disorderly. In such cases informal methods of disposal may be appropriate and effective; but if this approach fails and the disorderly conduct continues then criminal proceedings may be necessary.

In deciding whether a charge under section 5 is appropriate, the nature of the conduct must be considered in light of the penalty that the suspect is likely to receive on conviction.

Where there is reliable evidence that the accused was drunk in a public place at the time of the alleged offence to the extent that the accused had lost the power of self control, a charge of drunk and disorderly behaviour should be preferred where otherwise a section 5 charge would be appropriate.

By virtue of section 31(1)(c)of the Crime and Disorder Act 1998 (as amended by the Anti-Terrorism, Crime and Security Act 2001), section 5 is capable of being charged as a discrete racially or religiously aggravated offence, refer to CPS Guidance on Prosecuting Cases of Racial and Religious Crime, elsewhere in the Legal Guidance.

Racially/religiously aggravated section 5 is a summary only offence, with the maximum penalty being a fine not exceeding level 4 on the standard scale.

By virtue of Schedule 7 of the Serious Organised Crime and Police (SOCAP) Act 2005, section 5 is capable of being an arrestable offence if the criteria in section 24A PACE (as amended by section 110 SOCAP Act 2005) is satisfied.