Freedom of Expression,  Law Reform

Lords debate Section 5 reform today

From Peter Tatchell

The House of Lords will today debate an amendment by Lord Dear to end the criminalisation of mere insults. His amendment 119 to the Crime and Courts Bill repeals the ban on insults in Section 5 of the Public Order Act 1986. Lord Dear is the former Chief Constable of West Midlands and the former HM Inspector of Constabulary.

“The insults clause of Section 5 menaces free speech. It has been misused too many times to suppress freedom of expression. Reform of the law is supported by the present and previous Director of Public Prosecutions, the former Lord Chancellor Lord Mackay, the Independent Police Complaints Commission, Liberty, Justice and the Equality and Human Rights Commission, as well as the Reform Section 5 campaign. The Association of Chief Police Officers has no objection to reform,” said Peter Tatchell, Director of the human rights organisation, the Peter Tatchell Foundation, which is backing the repeal of the insults clause.

“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 5.

“The Section 5 ban on insults has been abused to variously arrest people protesting peacefully against abortion and campaigning for gay equality and animal welfare. Other victims include Christian street preachers and critics of Scientology.

“Freedom of expression is one of the most important of all human rights. It should be only restricted in extreme circumstances. The open exchange of ideas – including unpalatable, even offensive ones – is the hallmark of a free and democratic society,” he said.

On Monday 10 December, the Reform Section 5 campaign staged a protest outside the Home Office featuring Peter Tatchell dressed as a police officer, with a pantomime horse and a student. They were highlighting the case of an Oxford student who was arrested in 2005 under Section 5 for joking that a police officer’s horse was gay.

Section 5 of the Public Order Act 1986 criminalises “threatening, abusive or insulting words or behaviour…within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.”

There is no requirement to prove that anyone has been harassed, alarmed or distressed. The mere likelihood is sufficient to secure a conviction. Moreover, an offence is committed regardless of the offender’s intention. Innocently intended words can result in a criminal record. The police and the courts can decide if a person might feel insulted. This is a threat to free speech.

What constitutes a criminal insult is completely elastic and subjective, which is why people have been arrested for criticising homosexuality and Islamist extremists.

This legislation has been on the statue books 26 years. It was initially introduced to tackle football hooliganism and public disorder. The legislation is now being misused to criminalise people for trivial comments, including those who were simply expressing their views or beliefs.

The Reform Section 5 campaign includes all shades of opinion, from the Christian Institute to the National Secular Society, Freedom Association, Big Brother Watch and the Peter Tatchell Foundation. On this issue, we’ve sunk our differences and are working together to defend free speech and the right to protest.

In 1994, I narrowly avoided conviction under Section 5 after spending hours in a police cell and in court. My crime? I was involved in a peaceful protest against the Islamist extremists of Hizb ut-Tahrir. They were stirring hatred against Jews and Hindus and making threats to kill gay people and unchaste women. My placard suggested that their anti-Jewish and anti-gay incitements echoed Nazi ideology. This was deemed insulting. The Islamists were not arrested, while I spent hours in police detention.

Labour and the Conservatives are not supporting Lord Dear’s amendment to remove ‘insulting’ from Section 5. This is surprising given their professed commitment to civil liberties.

The current DPP last week changed DPP policy, as set out in a letter from Kier Starmer to Lord Dear on 6 December: “I therefore agree that the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions,” wrote the DPP.

“We hope that the Home Secretary Theresa May will listen to country’s top prosecutor and agree to reform this excessive and unwanted legislation, which has a chilling effect on free speech,” said Mr Tatchell.

Referring to the DPP letter, Simon Calvert, Reform Section 5 Campaign Director, commented:

“This is great news that pulls the rug from under the Government’s chief excuse for resisting reform. The Home Office has continually used the line that if it removes the word ‘insulting’ then it would not be able to prosecute hooligans and yobs who swear at the police. As this letter from the DPP shows, that is simply not the case,” he said.

Mr Tatchell added:

“The fact that former DPP Lord Macdonald and former Lord Chancellor Lord Mackay have added their names to amendment 119, and that they are supported by the likes of Baroness Kennedy of the Shaws QC and Lord Pannick QC, indicates that there is a very strong legal argument for reform.

“Any reluctance by some Lords to support the proposed reform could be based on a misunderstanding. Some have questioned whether it would:

a. decrease protection for the vulnerable
b. legalise disruption of remembrance day parades or
c. legalise swearing at police.

“Lord Macdonald’s written opinion comprehensively dismisses these arguments:

“The issue of swearing at police is a red herring. In the case of Southard, the judge described expletives aimed at police as constituting ‘abuse’.

“Section 5 outlaws ‘threatening, abusive or insulting words’, so removing the insult limb will not legalise swearing at police or anyone else since it would continue to be caught by the abuse limb. Abuse and threats would continue to be arrestable under the other provisions of Section 5.

“There are many laws that give the police adequate power to protect the vulnerable and maintain public order, including the other aspects of Section 5, plus Section 4A, the Protection From Harassment Act, aggravated offences, hate-based incitement crimes, the law of public nuisance, breach of the peace and the offence of assault,” said Mr Tatchell.

Mr Calvert concluded by saying:

“I don’t think any campaign has united such a diverse range of campaigners, MPs from Left and Right, faith-based groups and secularists. The support for reform is overwhelming.

“It cannot be right for the collective voices of so many to be ignored and we challenge the Government to back Lord Dear’s amendment in the House of Lords today.”

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