An official consultation on public order powers has just been launched.  

The home secretary, Theresa May, is seeking curfew powers for the police to create no-go areas during riots. The powers are expected to include immediate curfews over large areas to tackle the kind of fast-moving disturbances that swept across many of England's major cities in August. May also wants to extend existing powers to impose curfews on individuals and stronger police powers to order protesters and rioters to remove face masks.

On a more positive note, the consultation will look at repealing section 5 of the 1986 Public Order Act, which outlaws insulting words or behaviour. There are claims the provision hampers free speech and it has been the subject of a strong Liberal Democrat campaign.

Parliament's joint human rights committee has called for the removal of the word insulting to raise the threshold of the offence, citing a case in which a teenager was arrested for calling Scientology a cult. Evangelical Christians have complained about the use of section 5 to fine street preachers who proclaim that homosexuality is sinful or immoral.

Those supporting the reform say it would still cover threatening, abusive or disorderly behavour.

The consultation closes on 13 January 2012.

Update: So What About Section 4?

22nd October 2011. Based on article from secularism.org.uk

The National Secular Society, faith groups and civil liberties groups as well as the Joint Committee on Human Rights (JCHR), have long argued that the word insulting should be removed from section 5 of the Public Order Act on the grounds that it criminalises free speech.

The NSS is also concerned about the use of insulting in Section 4A of the Public Order Act.

In March 2010, Harry Taylor was found guilty of religiously aggravated intentional harassment, alarm or distress after he left anti-religious cartoons and other material he had cut from newspapers and magazines in the prayer room of John Lennon airport in Liverpool. Taylor was charged under Part 4A of the Public Order Act after the material was found by the airport chaplain, who said in court that she was insulted, offended, and alarmed by the cartoons and so called the police.

In its legislative Scrutiny of the Protection of Freedoms Bill, the Joint (Parliamentary) Human Rights Committee recommended the amendment of the Public Order Act to remove all references to offences based on insulting words or behaviour. Their report stated: We consider that this would be a human rights enhancing measure and would remove a risk that these provisions may be applied in a manner which is disproportionate and incompatible with the right to freedom of expression, as protected by Article 10 of the [European Convention on Human Rights] and the common law.

Stephen Evans, Campaigns Manager at the National Secular Society, said: In an open and democratic society such as ours, none of us should have the legal right not to be offended.

The word insulting should be deleted because in the interests of free speech there must be a higher threshold for criminality than insult. The law needs an urgent re-examination, so we very much welcome this consultation.

Offsite Comment: The Public Order Act: More than a little insulting

27th October 2011. See article from libdemvoice.org by Juilan Huppert MP

What do Peter Tatchell and the Christian Institute have in common? Before you answer, this isn't some deeply unfunny jibe from a Coalition colleague, but one of many unexpected alliances which have formed to oppose Section 5 of the Public Order Act 1986.

This rather insidious Section criminalises all those who use threatening, abusive or insulting words or behaviour, or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress. It also applies to those who display any writing, sign or other visible representation which is threatening, abusive or insulting.

...Read the full article

The decision by the Court of Appeal to overturn the public order conviction of a young suspect who repeatedly said 'fuck' while being searched for drugs, was described as unacceptable by police representatives last night. They claimed the ruling would undermine respect for officers. [They probably meant undermining 'fear' of officers ,who can currently hand out their own brand of 'justice' using the Public Order Act'].

Overturning Denzel Cassius Harvey's conviction, Mr Justice Bean said officers were so regularly on the receiving end of the rather commonplace expletive that it was unlikely to cause them harassment, alarm or distress.

Harvey was fined £50 for using strong language while they attempted to search him for cannabis in Hackney, east London. He told officers:

Fuck this man. I ain't been smoking nothing. When the search revealed no drugs, he continued: Told you, you wouldn't find fuck all. Asked whether he had a middle name, he replied: No, I've already fucking told you so.

Magistrates at Thames Youth Court found him guilty in March last year after hearing that Harvey's expletives were uttered in a public area while a group of teenage bystanders gathered around.

Appealing against his conviction, Harvey claimed that none of those within earshot, especially the two hardened police officers, would have been upset by his swearing.

Mr Justice Bean agreed that the expletives he used were heard

all too frequently by officers on duty and were unlikely to have greatly disturbed them. The judge added that it was quite impossible to infer that the group of young people who were in the vicinity were likely to have experienced alarm or distress at hearing these rather commonplace swear words used.

Peter Smyth, the chairman of the Metropolitan Police Federation, said:

If judges are going to say you can swear at police then everyone is going to start doing it. I'm not saying that police officers are going to go and hide in the corner and cry if someone tells them to 'F' off, but verbal abuse is not acceptable and this is the wrong message to be sending out.

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.

...Read the full article

Sometimes you have to feel sorry for the police. Beyond already dealing with a raft of ill-considered laws, politicians also want them to act against insulting behaviour. Section five of the Public Order Act is so broad that almost any protester on any subject can be arrested and fined for harassment, causing alarm or distress.

It's not merely theoretical; many ludicrous cases have been prosecuted. The police arrested a student who held up a sign stating Scientology was a cult -- surely a matter of opinion? Kyle Little, a 16-year-old from Newcastle, was fined £50 with £150 costs for saying woof to a labrador dog in front of police officers. Eventually the magistrates' decision was overturned by a crown court. The very arbitrary nature of deciding what is insulting gives the police a power they can misuse. After a night out with friends, Sam Brown asked a police officer: Excuse me, do you realise your horse is gay? Police took Brown to court after he refused to pay an £80 fine. The CPS eventually dropped the case.

...Read the full article

The National Secular Society has submitted a response to the Police Powers Consultation, calling on the Government to remove insulting from Section 5 of the Public Order Act. A change in the law would protect freedom of expression for both the religious and non-religious. It would also lay down clearer guidelines for the police and direct them to focus on more serious cases.

The submission calls on the Government to recognise that the word insulting sets the bar for criminal offence far too low. The risk of being arrested can in itself have a chilling effect, preventing people from expressing legitimate views. Section 5 would retain threatening and abusive conduct to cover serious offences and there are other existing laws to protect the individual.

Section 5 of the Public Order Act currently states that it is an offence to use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or 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 NSS submission makes the case that insult is too subjective and nebulous a concept, and therefore open to abuse, partly because a subjective response is hard to challenge. It also identifies a growing trend to claim offence on behalf of a religion.

Other organisations such as Liberty, Justice, the Christian Institute and the parliamentary Joint Committee on Human Rights are also calling for the removal of insulting. The law must recognise that groups like the Christian Institute have a right to freedom of expression but it must also ensure that insulting cannot be used by the religious to prevent debate, analysis or criticism.

Section 5 has been used against religious campaigners against homosexuality, a British National Party member who displayed anti-Islamic posters in his window and people who have sworn at the police. A teenage anti-Scientology protestor was arrested, as was a student for calling a police horse gay. Both were released without charge but changing the law would make guidance for the police clearer. At the moment, there is evidence that some officers are not clear about what does or does not constitute an insult.

The removal of the word insulting from section 5 would also bring English law into line with Scottish law, which works effectively without criminalising insulting. For example, the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2011 explicitly excludes insult from the list of banned behaviour.