Intended to protect us from harassment, the Public Order Act gives the police a free pass for harassing ordinary people. Section 5 of the Public Order Act is criticised by free speech campaigners. I think LGBT Catholics should be joining the campaign too.
Some daft things have happened under this bit of law.
- A student was arrested under section 5 for making a tasteless joke to a mounted policeman: “Excuse me, do you realise your horse is gay?“
- 19-year-old Kyle Little, was charged and convicted – though later cleared on appeal – for delivering what was described as a “daft little growl” and a ‘woof’ at two police labradors.
- A 15-year-old was summonsed to court for holding up a sign outside the Church of Scientology’s central London headquarters saying: “Scientology is not a religion. It is a dangerous cult“?
- Gay rights campaigner Peter Tatchell, was arrested and charged for shouting slogans and displaying placards condemning the persecution and execution of lesbian, gay, bisexual and transsexual people by Islamic governments, during a protest at a Hizb ut-Tahrir rally.
- An evangelical Christian preacher was convicted and fined for holding up a home-made sign that, beside the motto “Jesus is Lord”, proclaimed: “Stop immorality, stop homosexuality, stop lesbianism.”
We might say ‘serve you right’ for the tasteless ‘gay’ police horse joke, and to the evangelical Christian speaker for being homophobic – I’ve shouted at a few of those, and earned warm applause – but you have to take the rough with the smooth, and if we want the freedom to protest homophobic persecutions and executions in Muslim countries, and to be able to abuse homophobic street preachers without risking being arrested and held in a police station and having to appear in court, we do need the law changed.
All these are real cases of British police abusing a law that is so loosely worded that it invites police misunderstandings, over-use and law abuse.
Odd Coalition – LGBT people and Christian fundamentalists
That is why a campaign to reform section 5 was recently launched by a decidedly odd coalition of gay rights activists, evangelical Christians, atheists and politicians of all kinds. But if we want a transparent, secure platform for freedom of expression in Britain, we need to go further.
Section 5 of the 1986 Public Order Act says a person “is guilty of an offence if he
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”.
No evidence is needed of any intention to cause harassment, alarm or distress.
What’s wrong with it? ‘likely to‘ not ‘intended to’ alarm, harass, distress
There are two things wrong with this catch-all wording. First, section 4 of the same act, which is Britain’s law against incitement to hatred on grounds of sexual orientation or religion, always requires someone to ‘intend’ to cause someone harassment, alarm, or distress, but section 5 does not require any evidence of an intention to cause harassment, alarm or distress.
So, under section 5 is really easy for the police to over-react – all the police think about is: was it “likely to”. Who decides what is “likely to” cause harassment, alarm or distress? On the street, the police do. And as the cases above show, they sometimes over-react. The police sense of humour failures: the butch policeman upset at being told his horse was ‘gay’, and the police dog-handler annoyed his precious police pooches were ‘woofed’ at.
Yes, the Crown Prosecution Service may then choose not to prosecute, or the court may throw the case out, but the 15-year-old making an entirely reasonable point about Scientology being a cult, and the student who made the bad joke about a ‘gay’ police horse, meanwhile have suffered unwarranted alarm and distress.
A law intended to prevent harassment, has become a police tool for harassing ordinary people speaking their minds.
The second thing wrong with the law is the word “insulting”. The government says it won’t remove it from section 5 partly because then the courts would then have the ‘difficult job’ of telling the difference between merely ‘insulting’ words and behaviour, and things that are ‘abusive’ or ‘threatening’.
In a legal opinion written last year, Lord (Ken) Macdonald, the former director of public prosecutions, comprehensively demolishes this objection. It is perfectly possible to distinguish between the meanings of words; that is what judges do all the time; and “insulting” is a word too far. In a free society, we should be free (though not obliged) to insult each other, but not to threaten or abuse.
We need clear, liberal, consistent free speech laws
To make this country’s free speech laws clear, liberal and consistent, we should not only remove the word “insulting” from section 5:
- We should scrap section 5 completely.
- We should also put back the requirement of proving bad intention (which was there until 1976) to the wording on incitement to racial hatred, to make it the same as the law on incitement to hatred on grounds of religion, or sexual orientation.
A mature, multicultural country must have free speech laws that consistently require that, whatever the human difference at issue, the harassment, alarm or distress should be both intended and likely.
This is about freedom. And it is about what it means to be British.
Join the Campaign: Reform section 5 – feel free to insult me!