"(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."
The guidance for CPS prosecutors is available here. This section 5 offence often can cause considerable soul searching by those who preside over trials subsequent to not guilty pleas at the first listing. Facts might be relatively simple but the interpretation of these facts by the aggrieved party and the bench`s own position on that interpretation can lead to some very interesting discussion in the retiring room.
Last November I commented as did many others on the case of Daniel Harvey –v- the DPP of which the full transcript of the successful Appeal against conviction under s5 is available here. It was erroneously reported that it gave a license to swear at police without fear of retribution. A greater understanding of the decision at the High Court can be had from the following extract:-
“Where witnesses have given oral evidence of an incident which forms the basis of a charge under section 5 of the Public Order Act 1986, but have said nothing and been asked nothing about experiencing harassment, alarm or distress, there is no sound basis for the court to reach that conclusion for itself. This is particularly so in the case of police officers because, as Glidewell LJ observed in Orum, they hear such words all too frequently as part of their job. This is not to say that such words are incapable of causing police officers to experience alarm, distress or harassment.”
When it comes to deciding if words are considered “insulting” then the problems really begin. We have been insulting each other for ages. From the father of cartoonists, James Gillray, in the late 18th and early 19th century, to Peter Brookes The Times cartoonist, public figures have been lampooned to within an inch of their lives and in a recent case the Danish cartoonist Kurt Westergaard almost lost his life as a result of an attack by a Moslem seeking revenge for what he considered a cartoon insulting the Prophet.
Four years ago a teenager was charged under s5 for holding up a sign which read "Scientology is not a religion, it is a dangerous cult", outside its headquarters in the City of London. City of London Police said it had received complaints and warned the teenager to get rid of the sign as it breached the Public Order Act. The matter did not proceed to court because the CPS declined to prosecute. "Our advice is that it is not abusive or insulting and there is no offensiveness (as opposed to criticism), neither in the idea expressed nor in the mode of expression."
In April 2010 Dale Mcalpine was accused of a public order offence after speaking to a community support officer (PCSO) in Workington, Cumbria. When he was told that the PCSO was gay and that he had said to him, “The Bible says homosexuality is a sin”, he was charged with breaching section 5 of the Public Order Act by allegedly using threatening, abusive or insulting words or behaviour likely to cause harassment, alarm or distress. That case also was dropped by the CPS.
The freedom to insult even to the point of causing distress is an inimitable part of freedom of speech. The launch yesterday of the Reform Section 5 Campaign led by David Davis M.P. deserves the support of all who value free speech over political correctness.