Section 5 of the Public Order Act 1986 is a menace to free speech and the right to protest. It has been repeatedly abused by over-zealous police and prosecutors, to variously arrest gay rights campaigners, Christian street preachers, critics of Scientology and even students making jokes.
It is time Section 5 was repealed, to allow freedom of expression without the threat of arrest.
The opportunity for reform exists. The current Protection of Freedoms Bill could easily be amended.
Some MPs and Lords want to amend it. Alas, the Con-Dem government is hesitating, despite its professed commitment to restore many of civil liberties that were whittled away during the Blair-Brown era.
Section 5 Public Order Act 1986 states:
Harassment, alarm or distress.
(1) 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.
This legislation is sweeping, draconian and has a chilling effect.
There is no requirement to prove that the person intended any of the aforementioned likely consequences. They can be convicted under Section 5, regardless of their intention. Thus innocently intended words, behaviours or signs can result in a criminal record.
The first part of Section 5 is about criminalising disorderly behaviour, and words, behaviour or images that are threatening. Threats and disorderly behaviour are unacceptable. Criminalising them is therefore not unreasonable.
It is less clear that mere abuse warrants criminalisation. What constitutes abuse? Calling someone a “bloody fool” or a “drunken bastard” is abusive but should it be a crime? Different people have different interpretations regarding what level and forms of abuse should be lawful or unlawful. It’s a subjective judgement.
Likewise with insults. When does an insult cease to be a legitimate (if bad mannered) expression of opinion and become a matter for arrest and prosecution? Much satirical comedy and many polemical critiques of religion may be deemed insults by some people.
The second part of Section 5 is equally worrying. A crime is committed if a person is “likely” to be caused “harassment, alarm or distress”. There is no requirement to prove that anyone actually has been harassed, alarmed or distressed. The mere likelihood is sufficient to secure a conviction.
In particular, the criminalisation of harassment in Section 5 is superfluous. Safeguards against harassment exist in other legislation, notably the Protection From Harassment Act 1997.
What constitutes alarm and distress in Section 5 is a further subjective judgment, open to widely different interpretations. For some ultra-sensitive people, what others regard as valid criticisms may cause them distress. Provocative challenges to their beliefs can provoke alarm.
Indeed, any controversial or dissenting viewpoint has the potential to upset someone and result in them complaining that they felt insulted, alarmed or distressed. Liberal Muslims offend traditionalists, gay pride marches alarm homophobes, mixed race couples distress racists and gender equality is an affront to sexist men. You see my point?
Section 4A of the Public Order Act is sufficient to cover any exceptional circumstances requiring prosecution (although its criminalisation of mere insults should also be repealed for the afore-mentioned reasons). Moreover, 4A has the added safeguard that the person must have acted with intent.
If we accept that abuse or insults resulting in likely alarm or distress should be a crime, we risk limiting free and open debate and criminalising dissenting opinions and alternative lifestyles that some very conservative people may find offensive and upsetting. The right to mock, ridicule and satirise ideas, opinions, people and institutions is put in jeopardy. Section 5 can, in theory, be used to criminalise almost any words, actions or images, if someone (anyone) is likely to be alarmed or distressed by them.
To give some examples:
Campaigns against religious homophobia have sometimes resulted in lesbian and gay activists being arrested for causing insult or distress to homophobes and their religious supporters.
This is what happened to myself and other members of the lesbian, gay, bisexual and transgender (LGBT) human rights group OutRage! when we protested against 6,000 supporters of the Islamist fundamentalist group, Hizb ut-Tahrir, outside their mass rally at Wembley Arena in 1994.
They called for the killing of gays, apostates, Jews and unchaste women. They were not arrested but we were. Our crime? We shouted slogans and displayed placards that factually condemned Hizb ut-Tahrir supporters for inciting murder and also denounced the persecution of LGBT people by Islamist governments, such as the Iranian regime. Our placards were deemed insulting and likely to cause distress.
Section 5 has been also used unjustly against Christian street preachers who have merely condemned homosexuality, without being aggressive or threatening. What they said was homophobic and should be challenged but they should not be criminalised.
Dale McAlpine was arrested in Workington in 2010, after condemning homosexuality as a sin. He was charged with using threatening, abusive or insulting words or behaviour, likely to cause harassment, alarm or distress, contrary to Section 5.
The same law was also used to stifle the views of Muslims who condemned British soldiers in Iraq as “terrorists” and as the “butchers of Basra”.
In both cases, even though the charges were later dropped, the protesters had their freedom of expression infringed and they suffered public humiliation by the police.
The civil rights watchdogs, Liberty and Justice, want Section 5 either repealed or radically reformed.
Freedom of expression is one of the most important of all liberties and human rights. It should be only restricted in extreme and very limited circumstances. The open exchange of ideas – including unpalatable, even offensive, ideas – is a hallmark of a free and democratic society.
There is no right to be not distressed or offended. Some of the most important ideas in history – such as those of Galileo Galilei and Charles Darwin – caused great offence and distress in their time.
While bigoted opinions should always be challenged, in most instances only explicit incitements to violence and damaging libels, such as false allegations of tax fraud or child abuse, should be criminalised.
Causing insult or distress is far too low a threshold for criminalisation. It can inhibit the right to protest and free speech. There is no place for Section 5 in a democratic society.
A Select Committee should be charged to examine Section 5 and all public order laws, with a view to proposing reforms that strike a better balance between protecting the public and safeguarding freedom of expression, as Lord Avebury has proposed.
Peter Tatchell is Director of the human rights lobby, the Peter Tatchell Foundation.
This article first appeared in the Huffington Post.