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19 January 2012

Protecting free speech and public order

Protecting free speech and public order

The Home Office has concluded a consultation on police powers to promote and maintain public order. A change in the law may follow.

The consultation focuses on the single word 'insulting' in Section 5 of the 1986 Public Order Act. Section 5 makes it an offence to:

Use threatening, abusive or insulting words or behaviour, or 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.

The police have increasingly felt under political pressure to be seen to act when someone from a protected human rights category claims to feel 'insulted'. But civil liberties and religious groups have campaigned for many years for removal of the word 'insulting' from the law on the grounds that it criminalises free speech. The arguments have questioned the wide-ranging discretion given to the police by Section 5 to decide, often subjectively, what language or behaviour is threatening, abusive or insulting, and have urged that language or behaviour which is merely insulting should not be criminalised in this way. There have been a number of well-publicised cases in which Christian preachers have been arrested under Section 5 simply for expressing their religious beliefs which others have found to be 'insulting'. In 2001, Harry Hammond was arrested for displaying a sign in Bournemouth which annoyed some people who attacked him. He was charged, fined and convicted under Section 5. In 2009, Christian hoteliers Ben and Sharon Vogelenzang from Liverpool were taken to court for criticising Islam following complaints by a Muslim guest who took exception to a discussion of the relative merits of Christianity and Islam.

As indicated in recent parliamentary debate on the Protection of Freedoms Bill, the government has indicated that it is committed to restore the rights to non-violent protest. However, the purpose of the current consultation is to examine the significance of the word 'insulting' and whether it correctly offers protection to groups targeted by hate crime and offers a valid threshold for arrest. They are also concerned to establish that the police are effectively able to deal with disorder, especially with people who swear at police officers or who burn poppies on Remembrance Day.

The Evangelical Alliance has joined others in calling for removal of the word 'insulting'. Different people have different thresholds of tolerance for what they consider to be 'insult' and this subjective measure has resulted in many miscarriages of justice and inconsistent or ridiculous application of the law. Freedom of expression has accordingly suffered. The law should protect liberty of speech for the individual against powerful groups who want to use laws like Section 5 to silence those whose views they do not like or disagree with. A measure that was introduced in 1986 to deal with genuine public disorder in the context of industrial unrest and football hooliganism is now being regularly used by the police to regulate dissent and censor public debate. 'Abuse' is well understood, carries a higher threshold and is more serious than 'insult'. 'Threatening' is clearly more serious still. 'Insult' can be subjectively experienced even though caused by nothing more than disagreement or criticism, while 'abuse' is clearly targeted with aggressive intent to wound, hurt or intimidate. Abuse is therefore always deliberate whereas it is easily possible to insult someone accidentally without intention or even being aware of it.

Where there are genuine concerns about preserving the ability of the police to prevent swearing and to tackle groups who burn poppies, these offences either constitute 'abuse' in their own right or can be dealt with under other legal remedies.

Defence and protection of core civil liberties like freedom of speech is a fundamental matter for Parliament who are being urged to amend the existing legislation appropriately.