Millers Marine War Risks

Michael Davey; James Davey and Oliver Caplin

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CHAPTER 17 Riots, civil commotions

17.1 In ordinary parlance, “riot” and “civil commotion” are not easy to distinguish one from the other and the victims are not likely to appreciate fine distinctions. Moreover, when the courts are faced with only one or other term, either as an insured peril or as an excluded peril, which they must consider in the circumstances of the case, the distinctions can become further blurred. Nevertheless, there are important distinctions between them and in a work such as this, they must be explored. As a start, there are definitions of “riot” and “civil commotion” which, in the legal field, are to be preferred to the definitions given by the Oxford English Dictionary. These will be illustrated with cases.

“Riot”

17.2 Until 1987, “riot” had a well-settled meaning in English common law. Various definitions had been given, but the most comprehensive was that given by Phillimore J. in Field v. Receiver of Metropolitan Police. 1 Each element had to be present:

(1) number of persons, three at least;
(2) common purpose;
(3) execution or inception of the common purpose;
(4) an intent to help one another by force if necessary against any person who may oppose them in the execution of their common purpose;
(5) force or violence not merely used in demolishing, but displayed in such a manner as to alarm at least one person of reasonable firmness and courage.

17.3 With the entry into force of sections 1, 2 and 10 of the Public Order Act 1986, the law on “riot” was substantially altered. The Act abolished the common law criminal offence of “riot”, which had been assumed to provide the limits of the insured peril of “riot”. In its place was substituted section 1 of the Public Order Act 1986:

(1) Where twelve 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, each of the persons using unlawful violence for the common purpose is guilty of riot.
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(2) It is immaterial whether or not the twelve or more use or threaten unlawful violence simultaneously.
(3) The common purpose may be inferred from conduct.
(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(5) Riot may be committed in private as well as in public places.

17.4 Moreover, section 10(2) of the 1986 Act provided that Rules 8 and 10 of the Marine Insurance Act 1906 should be construed in accordance with section 1. The precise source of this provision is not clear, and was not discussed in the Green Paper, White Paper or Law Commission report that preceded the Bill.2 It is assumed that this was intended to ensure that all statutory references to riot were updated to refer to the statutory offence, but this may have been unnecessary in respect of the 1906 Act. The “rules for interpretation” appended to the 1906 Act were only ever an indication of practice at the time of the passage of the Act, and not binding on contracting parties.3 Section 10(2) makes an oblique reference only, saying in effect that rioters who attack the ship from the shore must be rioters within the definition of section 1, and “arrests etc. of Kings, Princes and people” (which is no longer an insured peril) shall not include rioters who come within the definition of the same section. Nevertheless, the intention seems clear that the section 1 definition should, in respect of policies taking effect on or after 1st April 1987, apply to the insured peril of “riot”. It would indeed be strange if rioters who attack the ship from the shore must be 12 or more in number, whereas for every other purpose three would be enough. 17.5 The underlying assumption at the heart of this analysis is that the limits of the peril of “riot” track the criminal law. This is not an isolated issue and problems have arisen in respect of the interpretation of other overlapping perils/offences such as “theft”.4 Given that the insurance market should be concerned with the identification of the optimal level of cover, there is an inherent weakness in tracking the criminal standard. The failure to adopt an autonomous definition of “riot”, or to reword the clause so as to pick a neutral term, assumes that the perceived benefits of continuity outweigh the consequences of change occurring in criminal law for reasons unrelated to insurance. The effect of section 10(2) is, as described above, likely to guide judicial interpretation of the word “riot” in the marine insurance context to the new definition, but without an obvious market reason for so doing. The restatement of the limits of the criminal offence was to ensure proportionate scaling of seriousness of offence to potential sanction.5 The statutory offence of riot carries a potential sentence of imprisonment double that of “violent disorder”, which only requires three participants and less concerted hostility. The effect of these changes on case law examples is described at paragraph 17.10.

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17.6 There are substantial differences between the common law offence and the statutory reformulation. Comments can be made as follows:

(1) There now need to be 12 persons or more taking part in place of the previous three. Riot is the most serious offence in the statutory triumvirate of riot/violent/disorder and affray.6
(2) There is now the need for unlawful violence, or at least the threat of it, whereas under the common law it was enough that the rioters were prepared to commit a tort which was not a crime. Since all violence is unlawful—except in self-defence—there is probably no substantial difference.
(3) The common purpose remains but this may now be inferred from conduct. It seems that it is no longer necessary to show that the common purpose was either completed, or at least actually began.
(4) The necessity to prove force or violence displayed in such a manner as to alarm a person of reasonable firmness or courage has disappeared. The threat of force or violence is enough and may be inferred from conduct on the common purpose.
(5) The fear of force or violence is now related to personal safety, but the person of reasonable firmness or courage need not be present at the scene. It is enough that if he were, he would fear for his personal safety.

Elements that remain unchanged:

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Millers Marine War Risks

Page 130

CHAPTER 17

Riots, civil commotions

Riots, civil commotions

“Riot”

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