Last month, the House of Lords voted to remove ‘insulting’ from section 5 of the Public Order Act 1986, under which it is an offence to use ‘threatening, abusive or insulting words or behaviour’ or to display ‘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’. Actual harassment, alarm or distress need not be caused.
No offence is committed if the perpetrator had no reason to believe that there was any person within sight or hearing who was likely to be caused harassment, alarm or distress or if the perpetrator is inside a dwelling with no reason to believe that the words or representation would be heard or seen outside that dwelling.
Theresa May said that whilst the government opposed the reform, it was ‘not minded’ to challenge the removal of ‘insulting’. Her reluctant acceptance of the decriminalisation of insulting words or representations was influenced by a letter written by Keir Starmer QC, the Director of Public Prosecutions, in which he said he was unable to identify a single case in which the alleged behaviour leading to conviction couldn’t be characterised as abusive as well as insulting. In light of Keir Starmer’s statement, which renders the inclusion of ‘insulting’ redundant for the purposes of prosecution, it is difficult to see why Theresa May so reluctantly expressed the government’s acceptance of the removal of ‘insulting’ from section 5.
The current and previous governments have favoured maintaining the law in its current form. In December, Lord Taylor of Holbeach told the House of Lords that the government was strongly in favour of retaining the wording of the section. Arguments that have been advanced in favour of maintaining the law include the difficulty for courts in deciding whether words are abusive (attracting criminal sanction) or merely insulting, and the operational confusion that constant changes to the Public Order Act engender.
The former is a nonsense. It is well within the competency of the courts to determine what is abusive and what is insulting; in applying the law the courts regularly have to address semantic questions. The latter is a more credible argument, but does not in any way justify the maintenance of a law that is at best useless and at worst confers arbitrary power on the police.
The following people were arrested using section 5:
- A student who asked a police officer if he realised his horse was gay
- A protester outside a Church of Scientology holding a placard with the word ‘cult’ written on it
- A man, who while being searched by a police officer, said: ‘Fuck this man’, ‘you won’t find fuck all’ and ‘I’ve already fucking told you so’
- A man who placed a poster in his window containing the words: ‘Islam out of Britain’
- A preacher holding a placard bearing the words: ‘Stop Immorality’, ‘Stop Homosexuality’ and ‘Stop Lesbianism’.
In the first two cases, charges were dropped before they came to court. In the third case, the judge found it unlikely that the police who were sworn at were likely to be harassed, alarmed or distressed; it was more probable that their reaction was one of boredom to language which they normally encounter while carrying out their duties. The final two cases (here and here) were successfully prosecuted (although the preacher in the latter case died before his appeal was heard).
The final two cases express views which are likely to be considered abhorrent by many people. But abhorrence and insult are not accurate indicators of criminality. The problem with criminalising insult is that a person can be insulted by any words or actions they so choose, rendering the law dangerously wide in application; almost any statement could be potentially criminal. The solution to that is that it is only insult which is likely to cause harassment, alarm or distress. This involves a judgement and imputes a standard of reasonableness into the law – only that which it is reasonable to be insulted by should be criminal. But that is even more dangerous as it risks criminalising any opinion that is insulting to the majority, suppressing dissent and minority opinions.
Section 5 was a law which gave the police an arbitrary power of arrest against any subject they found annoying or disrespectful, such as the student who called a police horse ‘gay’. Its reform will be very welcome. The freedom of expression as protected by Article 10 of the European Convention on Human Rights and Fundamental Freedoms is qualified to include restrictions necessary in a democracy. The right to insult and to offend, however, is itself necessary to democracy. Freedom of expression applies to ideas that ‘offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”’ (Handyside v UK).