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Ruff justice

As a nation, the British are more than comfortable with insults. Having given slow birth to a mongrel language that’s as useful for rudeness as it is for romance, we revel in using it to hurl invective at each other – a noble tradition that stretches from Shakespeare and Samuel Johnson to the present day. Even in the hallowed Houses of Parliament the insults fly – whether it’s Michael Foot saying that the former Tory MP Terry Dicks was “living proof that a pig’s bladder on the end of a stick can be elected to Parliament”, John Major referring to Tony Blair as a “dimwit” or Harriet Harman calling Danny Alexander a “ginger rodent”. So it may come as a surprise that as the law stands it is illegal to insult somebody in the UK.

This particular legal snag is tucked away in the Public Order Act 1986. Section 5 states:  “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.” Even in this dry legalese, it does seem at first glance to be an extraordinarily broad definition of an offence. But since it has been loitering in the law books for such a long time already, it seems strange that May suddenly saw the launch of the Reform Section 5 campaign, which seeks to have the references to “insults” removed.

“Kyle Little was arrested for saying ‘woof’ and making a ‘daft little growl’ at two labradors – despite the dogs’ owner having no interest in pressing charges”

The problem arises, it appears, when the authorities actually put the thing into practice. A drip-feed of examples of this law in action have been steadily appearing in the press for the last decade – normally involving the police, and in a few cases, for unknown reasons, animals. In 2005, Sam Brown, a student at Oxford University, was on a night out celebrating completing his degree when he walked past a mounted police officer. “Excuse me,” asked Brown. “Do you know your horse is gay?” The unfortunate graduate was arrested and, when he refused to pay a fine, locked up overnight. A spokesman for the Thames Valley Police said: “He made homophobic comments that were deemed offensive to people passing by.” (The offence or otherwise on the part of the horse was not taken into account).
The case was discontinued due to lack of evidence.

In 2007, 16-year-old Kyle Little was arrested for saying “woof” and making a “daft little growl” at two labradors – despite the dogs’ owner having no interest in pressing charges. Little was detained for five hours, charged, and fined, only to have his prosecution quashed on appeal (total cost to the taxpayer: £8,000).

Other incidents have been less daft, but arguably more worrying. In 2008, City of London police arrested a 15-year-old who was standing outside the Church of Scientology offices with a placard saying: “Scientology is not a religion it is a dangerous cult” (charges were later dropped). In 2010, street preacher Dale Mcalpine was charged with a public order offence for telling a gay police community support officer that he believed homosexuals were acting against the word of God (he eventually received £7,000 compensation and an apology from the police).  And in June this year, Lincolnshire pensioner John Richards was threatened with arrest under Section 5 over a sign in his window which read: “Religions are fairy stories for adults.”

Despite the tendency in these cases for convictions to be overturned or dropped, the arrests alone have deeply concerned a group of activists. The Reform Section 5 campaign has brought together a diverse range of supporters – from Peter Tatchell to David Davis MP, and from the National Secular Society to the Christian Institute. It’s not a group you’d gather for a peaceful dinner party, and the individuals in it are no doubt capable of insulting each other in multiple ways – but it’s exactly their desire for the freedom to insult and be insulted that they have coalesced around.

Which does lead to an obvious question. Given the ludicrous incidents mentioned, who thinks the law should stay as it is? The reform campaign commissioned a Com Res survey of MPs that found that 65 percent of them believed that the ability of the police to protect the public would not be undermined if the “insulting” clause was removed. But still, 17 percent said the opposite. The problem is that it’s always hard to get a government (or its police force) to give up powers they already have – the “insulting” clause has actually been lurking in the Act in different forms since 1936.

The government objects to the proposed deletion of the word “insulting” from Section 5 on the basis that this “could result in the Courts being left in the invidious position of having to decide on a case by case basis whether particular words or behaviour were  criminally ‘abusive’ or merely non criminally ‘insulting’”. Removing the clause could “allow people to mock and verbally torment disabled and other vulnerable people without committing an offence, even where the overall circumstances and failure to respond to requests to desist could properly be described as criminal”.

The crux of the arguments over Section 5 will be whether, if references to insults are removed from the law, cases of genuine harassment, intimidation, threats of violence or hate speech would be covered by other legislation. Lord MacDonald QC, former Director of Public Prosecutions, gave an opinion (requested by the Christian Institute) saying exactly this – that the likes of the Protection from Harassment Act 1997 offer a more than adequate guard against abuse.

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative” – High Court Justice Lord Sedley

It is undoubtedly better for the police if the law remains as it is. Being a police officer is hardly an easy job, and having some kind of sanction against people being disruptive idiots is handy to say the least. In the midst of ongoing terrorist alerts, and the aftermath of the 2011 summer riots, the police certainly don’t want to lose any existing powers they might have to quell unrest or potentially defuse angry crowds.

Significantly, the current legislation appears to allow the police to arrest people on the basis of the reaction their comments might elicit from others, rather than anything inherently wrong with what they’re saying. And this is a crucial distinction. The same potentially insulting comment uttered in a pub could have a totally different effect
if blared through a loudhailer outside a church.

But the role of the law in these circumstances has already been dealt with, at the turn of the last century. In 1997, Alison Redman-Bate and two other women – all evangelical Christians – were preaching outside Wakefield Cathedral. Their impromptu and inflammatory sermon attracted a largely hostile crowd that grew to more than 100 people – and they were arrested and convicted. The conviction was subsequently overturned by the High Court.

In his ruling at the end of the case, Lord Justice Sedley said: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it
does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”

The government has thus far been reluctant to rush into any kind of reform of Section 5, despite the likely backing it would have from MPs. In May 2011, Conservative MP Edward Leigh tabled an amendment to delete the word ‘insulting’ from the Act, but failed to make it law. The broad support his initiative received led the Government to hold a public consultation – the much-delayed results of which have yet to be announced.

The Reform Section 5 campaign appears to have already won its argument – with backing from diverse supporters, clear support in parliament, a list of cases of inappropriate uses of the Act, and what seems like a cast-iron legal case. It remains to be seen how much the government will drag its feet, and when it will finally bow to the inevitable and decriminalise insults.

Until then, easily offended Scientologists, labradors and horses (homosexual or otherwise) can rest easy – and we would advise readers to refrain from saying boo to a goose.

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