Public Order Act

The crime of insulting someone through words or behaviour, which once led to the arrest of a student for asking a police officer whether his horse was gay, is to be dropped.

Section 5 of the 1986 Public Order Act currently means that threatening, abusive or insulting words or behaviour might be deemed a criminal offence.

It has been rightfully criticised by free-speech campaigners, and in December the House of Lords voted by 150 to 54, a majority of 96, to remove the word insulting. The move was championed in the upper chamber by former West Midlands chief constable Lord Dear.

Home Secretary Theresa May confirmed to MPs that the government would not seek to overturn a Lords amendment scrapping the ban contained in Britain's often abused catch-all laws of the Public Order Act. May told MPs:

I respect the review taken by their Lordships. They had concerns which I know are shared by some in this House that Section 5 encroaches upon freedom of expression.

On the other hand, the view expressed by many in the police is that Section 5 including the word insulting is a valuable tool in helping them keep the peace and maintain public order.

Now there's always a careful balance to be struck between protecting our proud tradition of free speech and taking action against those who cause widespread offence with their actions.

She said the government had previously supported the retention of the word insulting to prevent people swearing at police officers, protesters burning poppies, or similar scenarios . The DPP Kier Starmer's statement that he agrees: that the word 'insulting' could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions. May said that in the light of Starmer's comments, ministers were not minded to challenge the Lords amendment to the Crime and Courts Bill.

Of course Labour are not the slightest impressed bit impressed by Britain allowing a little more freedom, and warned that it could remove protections for minority groups. Shadow home secretary Yvette Cooper pressed the government to produce an assessment of the impact of Section 5 of the Public Order Act on different groups, particularly on minority groups . S he shamefully spouted:

Many people have said that the existing Section 5 has formed some sort of protection. It is important to make sure we can protect freedom of speech ...BUT... it is also very important to make sure we can protect vulnerable groups from unfair discrimination.

Simon Calvert, campaign director for the Reform Section 5 group, said:

This is a victory for free speech.

People of all shades of opinion have suffered at the hands of Section 5. By accepting the Lords amendment to reform it, the government has managed to please the widest possible cross-section of society. They have done the right thing and we congratulate them.

The House of Lords on Wednesday night voted to remove a shameful law that criminalises the use of insulting language in Britain.

The upper chamber voted to erase the word insulting from the clause in the Public Order Act that covers speech and writing on signs which states a person is guilty of an offence if he uses threatening, abusive or insulting words or behaviour.

It follows a long history of abuse by the authorities.

MPs are likely to be asked to finally decide whether to vote down the Lords amendment early next year. A ComRes survey of MPs in May found 62% believed insults should not be illegal.

In Wednesday night's debate, peers said the government had concluded there was insufficient evidence that the removal of the world insulting would have overall benefits and urged their colleagues to vote against the amendment. It had been sponsored by the former West Midlands chief constable, Lord Dear, Labour peer Baroness Kennedy, the former director of public prosecutions Lord Macdonald and the former Lord Chancellor, Lord Mackay.

Campaigner Peter Tatchell said:

The criminalisation of insults is far too subjective and constitutes a dangerously low prosecution threshold. Anyone who values free speech and robust debate should welcome its removal from section five. The section five ban on insults has been abused to variously arrest people protesting peacefully against abortion and campaigning for gay equality and animal welfare. The open exchange of ideas -- including unpalatable, even offensive ones -- is the hallmark of a free and democratic society.

There is no need for a law that makes it a crime to insult someone, the Director of Public Persecutions has said.

In a boost to free-speech campaigners, Keir Starmer said it was safe to reform the controversial law that says it is a criminal offence to use insulting words or behaviour .

The clause of the 26-year-old Public Order Act has spurred a campaign which has united gay and secular activists, celebrities and conservative Christian evangelicals in favour of a robust right for people to insult each other.

The Crown Prosecution Service, which Starmer heads, has in the past been against any move to strike the word insulting from the statute book. But the DPP has now changed his mind, the CPS said.

He wrote in a letter to former West Midlands chief constable Lord Dear:

Having now considered the case law in greater depth, we are unable to identify a case in which the alleged behaviour leading to conviction could not properly be characterised as "abusive" as well as "insulting".

I therefore agree the word "insulting" could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions.

Gay rights campaigner Peter Tatchell said:

This legislation has been on the statue books for 26 years, initially to control football hooligans, major demonstrations and protests such as the miners dispute.

But the legislation is now being used to criminalise huge numbers of people for trivial comments.

In 2009 the police used this law 18,000 times, including against people who were expressing their views or beliefs in a reasonable manner.'

The Reform Section 5 campaign has taken a major step forward with the tabling of an amendment in Parliament to remove the word insulting from section 5 of the Public Order Act.

The amendment, to the Crime and Courts Bill, was made by Lord Dear, former Chief Constable of the West Midlands police, and countersigned by three prominent lawyers, former Lord Chancellor Lord Mackay of Clashfern, former Director of Public Prosecutions Lord (Ken) MacDonald and Baroness (Helena) Kennedy QC.

The amendment has been welcomed by the incoming Chair of the Equality and Human Rights Commission, Baroness Onora O'Neill, who said:

There is evidence that police are using this power to arrest and fine people for exercising their fundamental human right to freedom of expression.

Limitations on free speech to deal with offences such as incitement to hatred and violence are clearly necessary. However, a blanket ban on the use of any insulting words or actions is dangerous because it could criminalise anyone who speaks their mind, regardless of their intention.'

A legal change is vital to protect free speech along with better guidance on equality and human rights, to help police find the right balance between legitimate free speech and taking justifiable action against abusive words or conduct.'

The influential Joint (Parliamentary) Committee on Human Rights has also recommended that:

We understand the sensitivities with certain communities on the issue of criminalising insulting words or behaviour, but nonetheless we support an amendment to the Bill which reduces the scope of Section 5 Public Order Act 1986 on the basis that criminalising insulting words or behaviour constitutes a disproportionate interference with freedom of expression.

The campaign to reform section 5 has been led by the Christian Institute and the National Secular Society who last week wrote to every peer asking them to support the change.

Keith Porteous wood, Executive Director of the National Secular Society said:

Given the high level of support, especially with such prestigious names, we are highly optimistic that this campaign will be successful. The deadline for the Government to respond to the consultation passed many months ago and there is no credible opposition.

Protesters gathered outside Parliament on Thursday to demand greater protection for free speech by reforming Section 5 of the Public Order Act.

Section 5 of the Act outlaws insulting words or behaviour , but what exactly constitutes insulting is unclear and has resulted in many controversial police arrests. In 2008 a sixteen-year old boy was arrested for peacefully holding a placard that read Scientology is a dangerous cult .

Earlier this year human rights campaigners, MPs, faith groups and secularists joined forces to launch the Reform Section 5 campaign. The campaign has since won cross-party support in Parliament, and Parliament's Joint Committee on Human Rights has also called for change.

The Government is considering amending the Act, and set up a consultation on whether Section 5 should be amended or not. It closed in January, and seven months later the Government has yet to publish the results.

Campaigners have accused the Government of dragging its feet and say Thursday's protest outside Parliament shows that the issue hasn't gone away.

Speaking outside Parliament, Human Rights Campaigner Peter Tatchell said:

Most MPs back reform, as does the former Director of Public Prosecutions, Lord Macdonald QC. The government's delay and hesitation is unjustified. The criminalisation of mere insults under Section 5 is a threat to free speech. There are other laws to deal adequately with harassment, threats and serious abuse.

Peter Tatchell was joined outside the Houses of Parliament this morning by The Christian Institute's Simon Calvert and Keith Porteous Wood of the National Secular Society.

A couple of weeks ago, Lord Mawhinney tabled an amendment in the House of Lords to remove the word insulting from Section 5 of the Public Order Act. It's one of those catchall provisions with a very low prosecution threshold that tarnishes our reputation for freedom of expression. It has served to nobble those engaged in mischievous, but harmless, pranks, street preachers and those pouring scorn on religion.

Lord Mawhinney claimed in his speech to be something of an expert on insults,  but from the receiving end He said:

I am probably one of the very few in your Lordships' House who has been insulted and sworn at by people who are now Members of the Northern Ireland Assembly, the other place and, indeed, your Lordships' House, although I hasten to add that they were not Members of your Lordships' House when they were swearing at me and insulting me. It must also be remembered that I was chairman of the Conservative Party for two years. I know about being at the receiving end of insulting and swearing, and I am willing to join those police officers who do not much like it. However, that is not an excuse for curbing freedom of expression.

He noted that the Government consultation had closed six months ago, and Government responses are supposed to be made within three months. Just what was the problem, particularly as he had heard a well informed leak that the consultation responses had overwhelmingly been in favour of repeal? He added:

I say to the Minister that last year a poll of Members of Parliament showed that 62% were in favour of removing the word insulting from Section 5. The Christian Institute, the Peter Tatchell Foundation, the National Secular Society and ACPO are all in favour of it, and --- for goodness' sake --- it is even Liberal Democrat policy to take Section 5 without the word insulting in it.

Lord Henley, the Minister winding up, as expected, did not make any commitments but looked somewhat exposed, given not one peer had spoken in support of retaining insulting and the Government had been so late in responding to the consultation. He was pretty well reduced to pointing out that the wording originated in 1839.

The National Secular Society has submitted a response to the Police Powers Consultation, calling on the Government to remove insulting from Section 5 of the Public Order Act. A change in the law would protect freedom of expression for both the religious and non-religious. It would also lay down clearer guidelines for the police and direct them to focus on more serious cases.

The submission calls on the Government to recognise that the word insulting sets the bar for criminal offence far too low. The risk of being arrested can in itself have a chilling effect, preventing people from expressing legitimate views. Section 5 would retain threatening and abusive conduct to cover serious offences and there are other existing laws to protect the individual.

Section 5 of the Public Order Act currently states that it is an offence to use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or 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.

The NSS submission makes the case that insult is too subjective and nebulous a concept, and therefore open to abuse, partly because a subjective response is hard to challenge. It also identifies a growing trend to claim offence on behalf of a religion.

Other organisations such as Liberty, Justice, the Christian Institute and the parliamentary Joint Committee on Human Rights are also calling for the removal of insulting . The law must recognise that groups like the Christian Institute have a right to freedom of expression but it must also ensure that insulting cannot be used by the religious to prevent debate, analysis or criticism.

Section 5 has been used against religious campaigners against homosexuality, a British National Party member who displayed anti-Islamic posters in his window and people who have sworn at the police. A teenage anti-Scientology protestor was arrested, as was a student for calling a police horse gay . Both were released without charge but changing the law would make guidance for the police clearer. At the moment, there is evidence that some officers are not clear about what does or does not constitute an insult.

The removal of the word insulting from section 5 would also bring English law into line with Scottish law, which works effectively without criminalising insulting . For example, the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2011 explicitly excludes insult from the list of banned behaviour.

The decision by the Court of Appeal to overturn the public order conviction of a young suspect who repeatedly said 'fuck' while being searched for drugs, was described as unacceptable by police representatives last night. They claimed the ruling would undermine respect for officers. [They probably meant undermining 'fear' of officers ,who can currently hand out their own brand of 'justice' using the Public Order Act'].

Overturning Denzel Cassius Harvey's conviction, Mr Justice Bean said officers were so regularly on the receiving end of the rather commonplace expletive that it was unlikely to cause them harassment, alarm or distress .

Harvey was fined £ 50 for using strong language while they attempted to search him for cannabis in Hackney, east London. He told officers:

Fuck this man. I ain't been smoking nothing. When the search revealed no drugs, he continued: Told you, you wouldn't find fuck all. Asked whether he had a middle name, he replied: No, I've already fucking told you so.

Magistrates at Thames Youth Court found him guilty in March last year after hearing that Harvey's expletives were uttered in a public area while a group of teenage bystanders gathered around.

Appealing against his conviction, Harvey claimed that none of those within earshot, especially the two hardened police officers, would have been upset by his swearing.

Mr Justice Bean agreed that the expletives he used were heard

all too frequently by officers on duty and were unlikely to have greatly disturbed them. The judge added that it was quite impossible to infer that the group of young people who were in the vicinity were likely to have experienced alarm or distress at hearing these rather commonplace swear words used.

Peter Smyth, the chairman of the Metropolitan Police Federation, said:

If judges are going to say you can swear at police then everyone is going to start doing it. I'm not saying that police officers are going to go and hide in the corner and cry if someone tells them to 'F' off, but verbal abuse is not acceptable and this is the wrong message to be sending out.

An official consultation on public order powers has just been launched.  

The home secretary, Theresa May, is seeking curfew powers for the police to create no-go areas during riots. The powers are expected to include immediate curfews over large areas to tackle the kind of fast-moving disturbances that swept across many of England's major cities in August. May also wants to extend existing powers to impose curfews on individuals and stronger police powers to order protesters and rioters to remove face masks.

On a more positive note, the consultation will look at repealing section 5 of the 1986 Public Order Act, which outlaws insulting words or behaviour . There are claims the provision hampers free speech and it has been the subject of a strong Liberal Democrat campaign.

Parliament's joint human rights committee has called for the removal of the word insulting to raise the threshold of the offence, citing a case in which a teenager was arrested for calling Scientology a cult. Evangelical Christians have complained about the use of section 5 to fine street preachers who proclaim that homosexuality is sinful or immoral.

Those supporting the reform say it would still cover threatening, abusive or disorderly behavour.

The consultation closes on 13 January 2012.

Update: So What About Section 4?

22nd October 2011. Based on article from secularism.org.uk

The National Secular Society, faith groups and civil liberties groups as well as the Joint Committee on Human Rights (JCHR), have long argued that the word insulting should be removed from section 5 of the Public Order Act on the grounds that it criminalises free speech.

The NSS is also concerned about the use of insulting in Section 4A of the Public Order Act.

In March 2010, Harry Taylor was found guilty of religiously aggravated intentional harassment, alarm or distress after he left anti-religious cartoons and other material he had cut from newspapers and magazines in the prayer room of John Lennon airport in Liverpool. Taylor was charged under Part 4A of the Public Order Act after the material was found by the airport chaplain, who said in court that she was insulted, offended, and alarmed by the cartoons and so called the police.

In its legislative Scrutiny of the Protection of Freedoms Bill, the Joint (Parliamentary) Human Rights Committee recommended the amendment of the Public Order Act to remove all references to offences based on insulting words or behaviour. Their report stated: We consider that this would be a human rights enhancing measure and would remove a risk that these provisions may be applied in a manner which is disproportionate and incompatible with the right to freedom of expression, as protected by Article 10 of the [European Convention on Human Rights] and the common law.

Stephen Evans, Campaigns Manager at the National Secular Society, said: In an open and democratic society such as ours, none of us should have the legal right not to be offended.

The word insulting should be deleted because in the interests of free speech there must be a higher threshold for criminality than insult . The law needs an urgent re-examination, so we very much welcome this consultation.

Offsite Comment: The Public Order Act: More than a little insulting

27th October 2011. See  article from  libdemvoice.org by Juilan Huppert MP

What do Peter Tatchell and the Christian Institute have in common? Before you answer, this isn't some deeply unfunny jibe from a Coalition colleague, but one of many unexpected alliances which have formed to oppose Section 5 of the Public Order Act 1986.

This rather insidious Section criminalises all those who use threatening, abusive or insulting words or behaviour, or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress . It also applies to those who display any writing, sign or other visible representation which is threatening, abusive or insulting .