Wednesday, 18 July 2012

What do the National Secular Society and the Christian Institute wholeheartedly agree on?

Poles apart, you'd say, wouldn't you?  Well, they, together with noted campaigner, Peter Tatchell, want to see section 5 of the Public Order Act amended to remove the word 'insulting'.  This has all suddenly gained added topicality with the recent John Terry prosecution.  You can read the judgment here:

John Terry

Section 5 creates an offence of using threatening, abusive or insulting words or behaviour
likely to cause harassment, alarm or distress.  With John Terry, he admitted calling Anton Ferdinand " black c..." or perhaps " k......d".  I don't know that anyone could realistically say that this was anything other than insulting.  As the District Judge pointed out, whether or not JT is a racist was irrelevant.  True, he was charged with the racially aggravated form of the offence, but the offence can stand whether or not it takes a racially aggravated form.

The case fell because there was an element of doubt over JT's motive for using this sort of language, surprising as that may seem. That detail was important to JT, but would not be to the NSS or the CI.  What they are concerned about is the use of the term 'insulting behaviour' to limit freedom of expression.  I guess the question here is, should JT's use of bad language be the sort of thing the criminal law calls to account or not?  The view being expressed by the footballing world seems to be that what goes on on the pitch should be left alone.  To put it another way, should swearing constitute a crime? 

There's more than one way to control unacceptable behaviour - a whole range of sanctions in fact.  At the basic level, society disapproves of certain acts, like the exchange of language between Anton and John that fateful afternoon.  One would hope that a child using that sort of language could expect a firm challenge from its parents or its school teacher.  Continuous repetition of that challenge should cause an alteration to the behaviour.  Well, that's the theory anyway.

Civil sanctions can be introduced, enabling an affected party to institute proceedings in the civil courts against the offender.  An example is the law of libel.  This exists to deter people from making defamatory and false statements against others.  The criminal law simply doesn't intervene in this area and never has.  No one suggests that it should.  Spreading false and damaging stories about another person is a matter of legitimate private interest, but not public interest.  Hence one can institute a private action in the civil courts for damages, as a deterrent to this sort of miscommunication, and for an injunction to prevent any repetition.

Of course it's not JT's language which bothers campaigning groups.  It's the uneasy thought that plenty of people all too easily take offence at their campaigning.  Apparently the mere expression of a contrary opinion is enough to cause distress, and distress by another person's speech can constitute an offence in the terms of the Act!

In fact, the campaigners have set up a separate website on the topic here:

Reform section 5

I particularly recommend a viewing of the victims page - some of them really do beggar belief.

The key statement of the right to free expression is set out in Redmond-Bate v. DPP.  You can read it here:


The central sentiment and statement of principle comes late in the judgment.  It's one of the great legal expositions of human rights and how they should be honoured.

" Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy."

It's troubling to read that the UN of all bodies has in the past adopted an anti free speech policy, the defamation of religion resolution.  Fortunately that has now been replaced but I begin to wonder whether the right to freedom of expression is too circumscribed.  The truth is that when organisations as disparate as the NSS and the CI can agree that a law needs to be changed, it's hard to see how it can be anything other than objectionable.  If it means that footballers see it as a green light to deploy nothing but expletives on the pitch, that seems to me to be a price worth paying.  After all, we could still show them a red card as an alternative.

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  1. There's now an interesting analysis of the Terry decision on Obiter J's blog if you want to know more about the decision itself.

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