Free Speech – Review Section 4a and 5 of the Public Order Act

The European Commissioner for Human Rights said that Liam Stacey’s sentence under 4a of the Public Order Act was “wrong”.

If a judge has the power to send someone to prison for a minor speech offence under this Act, then there is something very wrong with the Public Order Act.

I think the government should urgently review these laws.

Why is this idea important?

The European Commissioner for Human Rights said that Liam Stacey’s sentence under 4a of the Public Order Act was “wrong”.

If a judge has the power to send someone to prison for a minor speech offence under this Act, then there is something very wrong with the Public Order Act.

I think the government should urgently review these laws.

Naturism in Public Places

 s.5 Public Order Act 1986 should be clarified to reduce the scope for abuse. It must be made clear that this offence concerns behaviour which would cause significant offence to most reasonable people and terms such as disorderly should be clarified or removed.

s.4, s.4A Public Order Act 1986 and s.66 Sexual Offences Act should be clarified. Nudity is not in itself evidence of the intent required by these offences.

The common law offence of Outraging Public Decency should be repealed as it duplicates statutory offences (see BN response to Law Commission consultation) and it is inherently vague.

Repeal bye law enabling powers and revoke any associated bye laws, which are unused or vulnerable to abuse.

The ASBO system should be clarified and reduced in scope to prevent abuse.

Abolish all fixed penalties for which a realistic means of appeal can not be provided.

Police cautions should have a cooling off period. There must be a statutory duty for the police to ensure that the accused understands the consequences of accepting a caution.

Provide an accessible means of appeal against police records.

Why is this idea important?

 s.5 Public Order Act 1986 should be clarified to reduce the scope for abuse. It must be made clear that this offence concerns behaviour which would cause significant offence to most reasonable people and terms such as disorderly should be clarified or removed.

s.4, s.4A Public Order Act 1986 and s.66 Sexual Offences Act should be clarified. Nudity is not in itself evidence of the intent required by these offences.

The common law offence of Outraging Public Decency should be repealed as it duplicates statutory offences (see BN response to Law Commission consultation) and it is inherently vague.

Repeal bye law enabling powers and revoke any associated bye laws, which are unused or vulnerable to abuse.

The ASBO system should be clarified and reduced in scope to prevent abuse.

Abolish all fixed penalties for which a realistic means of appeal can not be provided.

Police cautions should have a cooling off period. There must be a statutory duty for the police to ensure that the accused understands the consequences of accepting a caution.

Provide an accessible means of appeal against police records.

public nudity citizenship

Put the discussion the other way around.

 

Instead of people having to ask for the right to be naked in public whilst going about their normal business if they so choose, those who find it offensive should be invited to put forward clear and cogent reasons why it is offensive, other than the fact that they don't like it and therefore want it banned.

Why is this idea important?

Put the discussion the other way around.

 

Instead of people having to ask for the right to be naked in public whilst going about their normal business if they so choose, those who find it offensive should be invited to put forward clear and cogent reasons why it is offensive, other than the fact that they don't like it and therefore want it banned.

[*Formatting errors resolved*]Rebalancing the Public Order Act 1986 to protect Freedom of Speech

Firstly, I would suggest the introduction of a safeguard into the Public Order Act 1986 (POA) Part 3A, so that although collectively “inciting hatred” against individuals of religious minority groups is almost always forbidden (as it should be, given that most of its adherents are likely to be innocent), that nevertheless  you can impart such statements as “some individuals of x religious group are dangerous”, because the normative assumption we currently have whereby everyone within a particular group is assumed to be innocent is both speculative and detrimental from a point of view of defending freedom of speech. “Group libel” is the only reasonable compromise in this regard. However, with regards to the current wording of the law, it may be very difficult if not technically impossible to impart such opinions as “some members of x religious community are dangerous” (even where such comments are grounded in the truth), because the generous guarantees for critical discourse under the Racial and Religious Hatred Act 2006 only pertain to criticism of the ideas themselves, not their adherents. However, the reform I am suggesting would be sufficiently flexible to prevent such language as “[all] Christians/Muslims are dangerous”, while at the same time not suppressing the truth, thus catering for the demands of freedom of speech and those of community protection . A truth defence might also achieve a similar level of protection for freedom of speech in this regard, as one does not exist currently for any of the three “incitement to hatred” provisions.

Moreover, there may be limited circumstances where criticisms based on race can be justified, yet these would be inhibited under the POA. For instance, “white/black community leaders are not doing enough to tackle youth crime”. This should not face criminal sanction, because it may very well constitute a criticism based on an identifiable truth. Moreover, it may be necessary to engage the attention of relevant community representatives in order to bring about the changes which only they can effectively provide at a grassroots level. However, the current threshold of the POA “likely to incite hatred”, could easily lead to the arrest of anyone imparting such views, even if only intended as a genuinely helpful contribution to public discourse. As a civil libertarian, this troubles me. Therefore, I would suggest an amendment to remove the “likely” threshold and to replace this with “advocacy of hatred which at the same time constitutes incitement to cause harm”. The South African constitution utilises this balance, and such a threshold would seem more capable of protecting the kind of speech I have described above, as it would seemingly fall short of either test. However, at the same time it could prohibit the public display of the Nazi flag, which could easily constitute both, or the distribution of many racially charged pamphlets. Moreover, section 3A of the Race Relations Act should be amended as this provides arrest merely for “offensive language” which “violates a person’s dignity”. These stipulations are too broad, and recently turned a councillor into a criminal for calling another a “coconut”. Similarly, the "racially and religiously aggravated" harassment and public order (speech) offences from section 31/32/33 of the Crime and Disorder Act 1998 Act should be removed, as they can potentially make a racist out of any one.

Indeed the problems in section 3 are greatly aggravated by the threshold of “insulting language”, which has a similarly chilling effect on speech because almost any criticism could be classified as insulting to someone. Section 3 could therefore be bought more in line with section 3A (homophobic, anti-religious hatred) in this regard, which only prescribes arrest for “threatening” language.

The criminalisation of “insult” in sections 4a and 5 should not be considered acceptable within a democratic society, because almost any criticism can count as an insult, and therefore this should be removed from all sections of the Act in any future amendment, not only section 5 (which prescribes arrest for unintentional insult), but also 4A (which requires intent).To prohibit the use of “abusive” language without further qualification (as is currently the case) could also have potentially chilling effect on freedom of speech. This is because any abstract, impassioned discussion of a particular issue could find itself caught out, even if this did not constitute a hostile one-to-one confrontation which intuitively is where one would expect such a provision to apply. For example, an abstract discussion pertaining to homosexuality and how “homosexual sex is a sin” could find itself inhibited under such “abusive” threshold, because to some people, a word such as “sin” might constitute abusive discourse. The lack of “intent” as a requirement for such speech would certainly exacerbate this problem. Therefore, only “abusive language which intends to cause distress” would provide sufficient protections for speech.

The intent would have to be affixed to “distress” (though not “harassment” or “alarm” as they should be removed from the Act – explanation later), not the “abusive” language itself, because otherwise, freedom of speech would not be any better protected than it is at present.[ctnd]

Why is this idea important?

Firstly, I would suggest the introduction of a safeguard into the Public Order Act 1986 (POA) Part 3A, so that although collectively “inciting hatred” against individuals of religious minority groups is almost always forbidden (as it should be, given that most of its adherents are likely to be innocent), that nevertheless  you can impart such statements as “some individuals of x religious group are dangerous”, because the normative assumption we currently have whereby everyone within a particular group is assumed to be innocent is both speculative and detrimental from a point of view of defending freedom of speech. “Group libel” is the only reasonable compromise in this regard. However, with regards to the current wording of the law, it may be very difficult if not technically impossible to impart such opinions as “some members of x religious community are dangerous” (even where such comments are grounded in the truth), because the generous guarantees for critical discourse under the Racial and Religious Hatred Act 2006 only pertain to criticism of the ideas themselves, not their adherents. However, the reform I am suggesting would be sufficiently flexible to prevent such language as “[all] Christians/Muslims are dangerous”, while at the same time not suppressing the truth, thus catering for the demands of freedom of speech and those of community protection . A truth defence might also achieve a similar level of protection for freedom of speech in this regard, as one does not exist currently for any of the three “incitement to hatred” provisions.

Moreover, there may be limited circumstances where criticisms based on race can be justified, yet these would be inhibited under the POA. For instance, “white/black community leaders are not doing enough to tackle youth crime”. This should not face criminal sanction, because it may very well constitute a criticism based on an identifiable truth. Moreover, it may be necessary to engage the attention of relevant community representatives in order to bring about the changes which only they can effectively provide at a grassroots level. However, the current threshold of the POA “likely to incite hatred”, could easily lead to the arrest of anyone imparting such views, even if only intended as a genuinely helpful contribution to public discourse. As a civil libertarian, this troubles me. Therefore, I would suggest an amendment to remove the “likely” threshold and to replace this with “advocacy of hatred which at the same time constitutes incitement to cause harm”. The South African constitution utilises this balance, and such a threshold would seem more capable of protecting the kind of speech I have described above, as it would seemingly fall short of either test. However, at the same time it could prohibit the public display of the Nazi flag, which could easily constitute both, or the distribution of many racially charged pamphlets. Moreover, section 3A of the Race Relations Act should be amended as this provides arrest merely for “offensive language” which “violates a person’s dignity”. These stipulations are too broad, and recently turned a councillor into a criminal for calling another a “coconut”. Similarly, the "racially and religiously aggravated" harassment and public order (speech) offences from section 31/32/33 of the Crime and Disorder Act 1998 Act should be removed, as they can potentially make a racist out of any one.

Indeed the problems in section 3 are greatly aggravated by the threshold of “insulting language”, which has a similarly chilling effect on speech because almost any criticism could be classified as insulting to someone. Section 3 could therefore be bought more in line with section 3A (homophobic, anti-religious hatred) in this regard, which only prescribes arrest for “threatening” language.

The criminalisation of “insult” in sections 4a and 5 should not be considered acceptable within a democratic society, because almost any criticism can count as an insult, and therefore this should be removed from all sections of the Act in any future amendment, not only section 5 (which prescribes arrest for unintentional insult), but also 4A (which requires intent).To prohibit the use of “abusive” language without further qualification (as is currently the case) could also have potentially chilling effect on freedom of speech. This is because any abstract, impassioned discussion of a particular issue could find itself caught out, even if this did not constitute a hostile one-to-one confrontation which intuitively is where one would expect such a provision to apply. For example, an abstract discussion pertaining to homosexuality and how “homosexual sex is a sin” could find itself inhibited under such “abusive” threshold, because to some people, a word such as “sin” might constitute abusive discourse. The lack of “intent” as a requirement for such speech would certainly exacerbate this problem. Therefore, only “abusive language which intends to cause distress” would provide sufficient protections for speech.

The intent would have to be affixed to “distress” (though not “harassment” or “alarm” as they should be removed from the Act – explanation later), not the “abusive” language itself, because otherwise, freedom of speech would not be any better protected than it is at present.[ctnd]

The repeal/review of many sections of the Criminal Justice and Public Order Act 1994

Review of the following sections of this Act:

Section 54-59 & Section 60
(greater police powers in regards to searching and the taking of fingerprints and DNA,
greater police powers in regards to unregulated 'Stop & Search' policies).

Section 63-67
(definition of prohibited music in public places using the term 'repetitive beats', enablement of police to stop 100 or more attendees of events with music defined as containing 'repetative beats',
enablement of police to stop 2 or more organisers of of such events prior to them actually happening,
the absurd section 65 which enables police to stop and redirect any person they suspect of planning to attend such events within a 5 mile radius,
the enablement of police to stop protests deemed a nuisance including amongst other things, unauthorised camping).

Why is this idea important?

Review of the following sections of this Act:

Section 54-59 & Section 60
(greater police powers in regards to searching and the taking of fingerprints and DNA,
greater police powers in regards to unregulated 'Stop & Search' policies).

Section 63-67
(definition of prohibited music in public places using the term 'repetitive beats', enablement of police to stop 100 or more attendees of events with music defined as containing 'repetative beats',
enablement of police to stop 2 or more organisers of of such events prior to them actually happening,
the absurd section 65 which enables police to stop and redirect any person they suspect of planning to attend such events within a 5 mile radius,
the enablement of police to stop protests deemed a nuisance including amongst other things, unauthorised camping).

Repeal Sections 4A and 5 Public Order Act 1986

 

Sections 4A and 5 of the Public Order Act 1986 should be repealed and replaced with the text below.

 

 

Section 4A is overbroad and no longer needed in its current form. Section 5 is also an overbroad section that licences arbitrary interferences with free speech and peace protest. It is so overbroad that it grants the police carte blanc to arrest those whose views they find objectionable, or people they want to simply control. The police have ample powers to deal with disorderly or anti-social conduct. And there are also adequate provisions on the statute book to deal with harassment.

These sections should be repealed and replaced with a provision that requires an intent to cause a breach of the peace. This would bring the law into conformity with the ECHR and go some way to restoring old the common law position.

Section 5 Insulting, Abusive or Threatening Conduct

(1) Any person who in any public place uses threatening, abusive or insulting conduct, words or behaviour with intent to provoke a breach of the peace or where by a breach of the peace would be imminent in all the circumstances shall be guilty of an offence.

(2) Any person who displays any writing, sign or other visible representation which is threatening, abusive or insulting with intent to provoke a breach of the peace or where by a breach of the peace would be imminent in all the circumstances shall be guilty of an offence.

(3) No offence shall be committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a domestic dwelling.

(4) A ‘public place’ in subsection (1) includes a public meeting.

Why is this idea important?

 

Sections 4A and 5 of the Public Order Act 1986 should be repealed and replaced with the text below.

 

 

Section 4A is overbroad and no longer needed in its current form. Section 5 is also an overbroad section that licences arbitrary interferences with free speech and peace protest. It is so overbroad that it grants the police carte blanc to arrest those whose views they find objectionable, or people they want to simply control. The police have ample powers to deal with disorderly or anti-social conduct. And there are also adequate provisions on the statute book to deal with harassment.

These sections should be repealed and replaced with a provision that requires an intent to cause a breach of the peace. This would bring the law into conformity with the ECHR and go some way to restoring old the common law position.

Section 5 Insulting, Abusive or Threatening Conduct

(1) Any person who in any public place uses threatening, abusive or insulting conduct, words or behaviour with intent to provoke a breach of the peace or where by a breach of the peace would be imminent in all the circumstances shall be guilty of an offence.

(2) Any person who displays any writing, sign or other visible representation which is threatening, abusive or insulting with intent to provoke a breach of the peace or where by a breach of the peace would be imminent in all the circumstances shall be guilty of an offence.

(3) No offence shall be committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a domestic dwelling.

(4) A ‘public place’ in subsection (1) includes a public meeting.

Section 5 of the public order act

"Contempt of Cop"

Section 5 of the public order act has been overused by the target lead police force. It is used to arrest anyone who dares to profane with in ear shot of a police officer who then arrests the individual under this law so they can meet their targets.

Even with the scrapping of labour targets, this law is used to much to limit free speech and should be scrapped.

Why is this idea important?

"Contempt of Cop"

Section 5 of the public order act has been overused by the target lead police force. It is used to arrest anyone who dares to profane with in ear shot of a police officer who then arrests the individual under this law so they can meet their targets.

Even with the scrapping of labour targets, this law is used to much to limit free speech and should be scrapped.