by THE CHRISTIAN INSTITUTE
October 2010
Contents
- The Freedom Bill
- The need for public order laws
- Parliamentary committee calls for removal of the word ‘insult’
- Police guidance is a problem
- ‘Insult’ cases under Section 5 of the Public Order Act
Let’s be free to disagree
Should the law criminalise “insulting” words or behaviour? Most people would say “no”. The freedom to disagree and to challenge received wisdom lie at the heart of a democracy.
But Section 5 of the Public Order Act 1986 outlaws “insulting” conduct, and it is having a chilling effect on free speech.
Section 5 criminalises “threatening, abusive or insulting” words or behaviour which are likely to cause “harassment, alarm or distress”. The police need powers to maintain law and order. But the phraseology of Section 5 (which applies to England and Wales) is now being used as a speech crime to censor debate.
Parliament’s Joint Committee on Human Rights, citing the case of a teenager arrested for labelling Scientology a cult, has called for the removal of the word “insulting” to raise the threshold of the offence. This should be done in the Freedom Bill.
Christian hoteliers cleared of Muslim ‘insult’
In March 2009 hotel owners Ben and Sharon Vogelenzang were charged by police under Section 5 of the Public Order Act, following a religious debate with a Muslim guest.
In December 2009 they were found innocent after a judge said their accuser’s evidence was not reliable.
The conversation included discussion about whether Islamic dress for women is a form of “bondage” and whether Jesus is the Son of God or just a prophet of Islam.
The Muslim lady, Ericka Tazi, later complained to police and the Christian couple suffered months of anxiety as they waited for the trial.
In court Mrs Tazi accused the couple of launching an hour-long verbal attack against her. She claimed they had called her a terrorist and mocked her Islamic headscarf.
But Mrs Tazi’s claims were contradicted by other witnesses and, after hearing all the evidence, District Judge Richard Clancy said her version of events could not be trusted and hinted that the police should have handled the matter more appropriately.
The police and Crown Prosecution Service combined the Section 5 charge with a “religious aggravation”. This would have increased the maximum fine from £1,000 to £2,500 each.
Ben and Sharon’s hotel business was devastated by the prosecution.
The Freedom Bill presents an opportunity
The coalition Government is introducing the Freedom (or Great Repeal) Bill to restore freedoms and civil liberties through the repeal of “unnecessary laws”.[1] Deputy Prime Minister Nick Clegg has promised the Bill will “…protect our hard-won liberties”.[2]
Over recent years public figures from across the political spectrum have voiced mounting alarm about growing state intrusion into every area of life.
In particular there is a lengthening list of cases where police have wrongly interfered with freedom of speech, part of the very essence of a civilised society: from the arrest of speakers in the open air to elderly Christians being interrogated in their living rooms.
One key problem is undoubtedly the overbroad scope of Section 5 of the Public Order Act, as the cases in this briefing show. By allowing a person to be arrested simply for saying or doing something “insulting”, Section 5 has effectively created a new thought crime.
Narrowing the scope of Section 5 by removing the word “insulting” would be a simple move ideally suited to the purpose of the Freedom Bill. It would positively influence police on the ground without the need for yet more guidance, some of which has in fact exacerbated the problem (see below).
A key principle of the Freedom Bill should be protecting the freedom to disagree.
Police guidance is a problem
There is widespread concern that ‘hate crime’ guidance issued in 2005 by the Association of Chief Police Officers (ACPO) is harming free speech.
Respected constitutional lawyer Francis Bennion has criticised its emphasis on pursuing alleged incidents of ‘hate’ regardless of whether the allegation is true, or whether the incident is actually a crime.[3]
The guidance strays far beyond a proper response to the outcry over the Stephen Lawrence case, provoking police to intrude in all sorts of unrelated politicised issues which involve disagreement but not hatred.
It is easy to see how the guidance can inspire a policeman to reach for Section 5 of the Public Order Act, turning legitimate free speech into a thought crime.
The need for public order laws
In 1986 the Home Secretary Douglas Hurd told Parliament that Section 5 was intended to “provide the police with more effective powers to protect the public against hooligan behaviour” but without undermining civil liberties. “[W]e have no desire to use the criminal law to enforce a particular social standard” he said.[4]
Clearly Section 5 needs amending to return to the higher threshold envisaged then. Removing “insulting” would not prevent hooliganism from being punished. Section 5 would still cover “threatening”, “abusive” and “disorderly” behaviour. Police do have other powers. The Protection from Harassment Act 1997 criminalises repetitive harassment. The laws of public nuisance and breach of the peace are broad enough to catch a wide range of disorderly behaviour.
View from a former Senior Crown Prosecutor
“Looking back on the large number of [Section] 5 cases I have either prosecuted or defended over the years I cannot think of any “normal” public order situation which could not be covered by the words “threatening and abusive”. Most cases under s5 involve people (often drunk) yelling aggressively and [swearing] and that is the sort of situation that s5 …was supposed to deal with, it was never supposed to deal with the situation where individuals, whether street preachers or otherwise, were expressing their personal opinions”.[5]
—Neil Addison, Co-author of Harassment Law and Practice, Blackstone Press
Campaigners speak out for free speech
Section 5 has sometimes been used to silence disagreement on the subject of sexual ethics. But homosexual campaigners have criticised police and prosecutors for doing so.
When Dale Mcalpine (see back page) was arrested for answering a question about homosexual conduct, Terry Sanderson of the National Secular Society labelled it “a ridiculously over-thetop reaction to someone exercising their right to freedom of speech.”[6]
Peter Tatchell of OutRage said that people should not be arrested for expressing their views in a “non-threatening and non-aggressive manner.” He added: “If offending others is accepted as a basis for prosecution, most of the population of the UK would end up in court.”[7]
Mr Tatchell also defended the elderly street preacher Harry Hammond (see back page). “If we want free speech to express our support for gay rights,” he wrote, “we must also respect the right of others to express a contrary view.”[8]
Parliamentary committee calls for removal of the word ‘insult’
An influential committee of MPs and Peers has called for the word “insulting” to be removed from Section 5. Parliament’s Joint Committee on Human Rights said it was concerned by evidence that the law had “been used to prevent people from freely expressing their views on matters of concern to them”.
The Committee did not think that language or behaviour which is merely “insulting” should ever be criminalised in this way.
It recommended deleting the word “insulting” from Section 5, “so that it cannot be used inappropriately to suppress the right to free speech”.[9]
Civil liberties groups speak out
Liberty says Section 5 is being used to erode free speech. In evidence submitted to Parliament, citing the case of the anti-Scientology protester (see back page), the group expressed “concerns over police policy in this area and the chilling effect of such cases on legitimate free speech.”[10]
Justice, another civil liberties organisation, argues the offence is “extremely broad and can be used by police in a wide variety of circumstances at their discretion… In our view, the removal of the word ‘insulting’… would go some way to prevent the overuse of this power in the context of protests and demonstrations.”[11]
Lib Dems: “no right not to be offended”
The Liberal Democrat Party made a manifesto pledge to reform the Public Order Act “to safeguard non-violent protest even if it offends”.[12] Former frontbench spokesman, Evan Harris, speaking in March 2009, argued that Parliament “must make it clear, in statute and in the minds of the police, that there is no right not to be offended”.
“We need to get rid of the idea of insult, especially unintentional insult – as in section 5 of the Public Order Act 1986 – from our statute book”, Dr Harris said.
At the time, Conservative front bench spokesman Dominic Grieve (now Attorney General) said he was “sympathetic” to the suggestion.[13]
‘Insult’ cases under Section 5 of the Public Order Act
Case #1: Dale Mcalpine
In April 2010 street preacher Dale Mcalpine was arrested and spent almost eight hours in a police cell after saying to a Police Community Support Officer that homosexual practice is a “sin”. The comments were not made during his public preaching but afterwards in response to questions asked by the PCSO. The police bail conditions even banned Mr Mcalpine, of Workington in Cumbria, from preaching in his own church. The Crown Prosecution Service dropped the case before it came to trial.
Case #2: Animal Rights Campaigners
Demonstrators in Worcester were threatened with arrest and seizure of property under Section 5 for protesting against seal culling using toy seals coloured with red food dye. Police informed them that the toys were deemed distressing by two members of the public. The police then ordered them to move on. One protester commented, “I can’t see how a toy seal would be offensive to anyone.”[14]
Case #3: Scientology protester
In May 2008 a 16 year-old protester faced a trial for holding a placard outside a Scientology centre saying: “Scientology is not a religion, it is a dangerous cult.” The boy claims police told him he could not use the word “cult”. He explained to officers that similar wording had been used by a judge in a 1984 court case. The police insisted he take down the sign, gave him the court summons and confiscated the sign when he refused. City of London Police claimed they respected the right to demonstrate but had to “balance that with the right of all sections of community not to be alarmed, harassed or distressed”. They referred to the Crown Prosecution Service the allegation that the sign was “abusive or insulting”. Advocacy group Liberty took up the case and there was widespread criticism of the police. The CPS dropped the case.[15]
Case #4: Kyle Little
Kyle Little, 19, after being warned by police officers for using bad language in the street, was arrested and later prosecuted under Section 5 for a “daft little growl” and a “woof” towards two Labradors that came bounding towards him. After the arrest he was detained by police for five hours, despite the dogs’ owner not wanting any prosecution. At the cost of £8,000 to the taxpayer, Newcastle Crown Court acquitted Little of the charge.[16]
Case #5: Harry Hammond
In 2002 an elderly Bournemouth street preacher, Harry Hammond, was convicted for displaying a sign which said that homosexual conduct is immoral and fined £300 plus £395 costs. The High Court later upheld the conviction, saying magistrates were entitled to find the sign “insulting” to homosexuals.[17] Although Mr Hammond had been assaulted by a crowd and knocked to the ground, only Mr Hammond was ever arrested.
References
- Number 10, News, Queen’s Speech – Freedom (Great Repeal) Bill, 25 May 2010
- The Daily Telegraph, 1 July 2010
- Bennion, F, ‘New Police Law Abolishes the Reasonable Man (and Woman)’, Justice of the Peace, 170, January 2006, pages 27-30
- House of Commons, Hansard, 13 January 1986, col. 794
- See http://religionlaw.blogspot.com/2010/05/what-have-you-been-saying-homophobic.html as at 29 September 2010ackstone Press
- See http://www.secularism. org.uk/120395.html as at 27 September 2010
- See http://outrage.org. uk/2010/05/freedom-of-speechmust-be-defended-even-forhomophobes/ as at 27 September 2010
- The Mail on Sunday, 26 May 2002
- Demonstrating Respect for Rights? A Human Rights Approach to Policing Protest, House of Lords and House of Commons Joint Committee on Human Rights, Session 2008-09, HL Paper 47-1, HC 320-1, vol. 1, paras 84 and 85
- See http://www.liberty-human-rights.org. uk/pdfs/policy08/response-to-jchr-reprotest-2.pdf as at 27 September 2010
- See http://www.justice.org.uk/images/ pdfs/S5%20POA%20consult%20response. pdf as at 27 September 2010
- Liberal Democrat Manifesto 2010, page 93
- House of Commons, Hansard, 24 March 2009, col. 199
- Worcester News, 21 March 2006. See also http://www.indymedia. org.uk/en/2006/03/336399.html as at 28 September 2010
- The Guardian, 23 May 2008; The Daily Telegraph, 21 May 2008. See also http://www. liberty-human-rights.org.uk/ media/press/2008/free-speechvictory-as-charges-againstteen-anti-scientology-protestor. php as at 27 September 2010
- The Daily Telegraph, 28 April 2007
- Hammond v Department of Public Prosecutions, [2004] EWHC 69 (Admin)
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