The end of the offence of “insulting behaviour”? Don’t you believe it

As part of an ongoing consultation on” police powers to promote and maintain public order” (http://www.homeoffice.gov.uk/publications/about-us/consultations/police-powers/) the offence of insulting behaviour is being reviewed, possibly with a view to repeal.  This would be welcome because it is an offence which at bottom relies on a subjective judgement by those making a decision to arrest, those deciding to charge and the jury or magistrate.   It is  an open invitation to state abuse because  a government can produce a situation whereby dissidents will be prosecuted and those agreeing with the political class  left unmolested by the law.

Welcome as the ending of the offence would be, the proposal as framed in the consultation would be next to meaningless  because prosecutions could be taken under  different  laws for the same behaviour with a similar risk of bias.

Public Order Act 1986

The offence is contained within section 5 of the Public Order Act 1986, viz: .

5 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.

(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.

(3)It is a defence for the accused to prove—

(a)that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or

(b)that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(c)that his conduct was reasonable.

(4)A constable may arrest a person without warrant if—

(a)he engages in offensive conduct which [F2a] constable warns him to stop, and

(b)he engages in further offensive conduct immediately or shortly after the warning.

(5)In subsection (4) “offensive conduct” means conduct the constable reasonably suspects to constitute an offence under this section, and the conduct mentioned in paragraph (a) and the further conduct need not be of the same nature.

(6)A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.” (http://www.legislation.gov.uk/ukpga/1986/64)

All that is being  proposed is the removal of the word “insulting”.   If that is done it will leave “threatening” and “abusive” which could be used just as readily  to encompass that which is deemed insulting.

The position is worsened because the consultation mentions only the use of insulting in section 5,  but the word is also in sections 4 and 4A:

“4. Fear or provocation of violence.

(1)A person is guilty of an offence if he—

(a)uses towards another person threatening, abusive or insulting words or behaviour, or

(b)distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting, with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.

(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is distributed or displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.

(3)A constable may arrest without warrant anyone he reasonably suspects is committing an offence under this section.

(4)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.

4A Intentional harassment, alarm or distress.

(1)A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, 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, thereby causing that or another person harassment, alarm or distress.

(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.

(3)It is a defence for the accused to prove—

(a)that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(b)that his conduct was reasonable.

(4)A constable may arrest without warrant anyone he reasonably suspects is committing an offence under this section.

(5)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months
or a fine not exceeding level 5 on the standard scale or both.]” (http://www.legislation.gov.uk/ukpga/1986/64)

It would be very easy to effectively shift the offence of insulting behaviour from section 5 to sections 4 and 4A, because what constitutes a threat of violence (section 4) is a subjective judgement and intent (section 4A) is a very flexible concept.

Crime and Disorder Act  1998

In addition to the Public Order Act 1986 there is the Crime and Disorder Act 1998 http://www.legislation.gov.uk/ukpga/1998/37/contents/enacted). This Act contains the ASBO and “Racially Aggravated Offences” authorisation. The Government has signalled its intention to replace the ASBO with  The Criminal Behaviour Order (http://www.homeoffice.gov.uk/publications/consultations/asb-consultation/criminal-behaviour-order?view=Html) , but it is probable that its effect on free expression will be broadly that of the ASBO.  The relevant ASBO  section of the Act is:

“1. Anti-social behaviour orders

(1)An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely—

(a)that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and (b)that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him;

and in this section “relevant authority” means the council for the local government area or any chief officer of police any part of whose
police area lies within that area.” (http://www.legislation.gov.uk/ukpga/1998/37/section/1/enacted)

Again, it is easy to see how an effective offence of insulting behaviour can be created, although here the situation is complicated by the fact that the ASBO is a civil law order . However, its breach can result in the criminal offence of contempt of court.

The racially aggravated offence section is this:

28 Meaning of “racially aggravated”.

(1)An offence is racially aggravated for the purposes of sections 29 to 32 below if—.

(a)at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial group; or.

(b)the offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.

(2)In subsection (1)(a) above—.

“membership”, in relation to a racial group, includes association with members of that group;

“presumed” means presumed by the offender.

(3)It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender’s hostility is also based,
to any extent, on—.

(a)the fact or presumption that any person or group of persons belongs to any religious group; or.

(b)any other factor not mentioned in that paragraph..

(4)In this section “racial group” means a group of persons defined by reference to race, colour, nationality (including citizenship) or
ethnic or national origins (http://www.legislation.gov.uk/ukpga/1998/37/section/28/enacted).

Because of the ever increasing expansion of the remit of what is deemed racist in Britain, this potentially has an extremely broad application.  Those who doubt the grip of the anti-racist mania  might care to reflect on the fact that we are living in a country in which the placing of golliwogs in a shop window results in a police warning  (http://www.dailymail.co.uk/news/article-452477/Police-order-shopkeeper-remove-golliwogs-window.html) and  a Rangers football supporter can be jailed for 8 months for engaging in anti-Catholic abuse at a Rangers v Celtic game (http://www.irishtimes.com/newspaper/world/2011/1018/1224305996315.html). Moreover,  because of the elevation of racism to the ultimate crime in the politically correct lexicon, the police are very keen to investigate such complaints where they involve a complaint from a non-white accuser.

Although specific  criminal law relating to them has not been created,  there has been a drive in the past 15 years  towards creating a range of so-called “hate crimes” other than those relating to racism, especially those deemed homophobic or abuse directed at the disabled.  In principle, any words deemed to be discriminatory whatever the situation could be caught by the Public Order Act 1986.

Race Relations Act 1976

Finally, there is the Race Relations Act 1976.  Part IX deals with incitement to racial hatred:

70 Incitement to racial hatred

(1)The Public Order Act 1936 shall be amended in accordance with the following provisions of this section.

(2)After section 5 there shall be inserted the following section:— “Incitement to racial hatred.

(1)A person commits an offence if—

(a)he publishes or distributes written matter which is threatening, abusive or insulting; or

(b)he uses in any public place or at any public meeting words which are threatening, abusive or insulting,

in a case where, having regard to all the circumstances, hatred is likely to be stirred up against any racial group in Great Britain by the matter or words in question.

(2)Subsection (1) above does not apply to the publication or distribution of written matter consisting of or contained in—

(a)a fair and accurate report of proceedings publicly heard before any court or tribunal exercising judicial authority, being a report which is published contemporaneously with those proceedings or, if it is not reasonably practicable or would be unlawful to publish a report of them contemporaneously, is published as soon as publication is reasonably practicable and (if previously unlawful) lawful; or

(b)a fair and accurate report of proceedings in Parliament.

(3)In any proceedings for an offence under this section alleged to have been committed by the publication or distribution of any written matter, it shall be a defence for the accused to prove that he was not aware of the content of the written matter in question and neither suspected nor had reason to suspect it of being threatening, abusive or insulting.

(4)Subsection (3) above shall not prejudice any defence which it is open to a person charged with an offence under this section to raise apart from that subsection.

(5)A person guilty of an offence under this section shall be liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding £400, or both ;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both ;

but no prosecution for such an offence shall be instituted in England and Wales except by or with the consent of the Attorney General.

(6)In this section—

‘ publish ‘ and ‘ distribute’ mean publish or distribute to the public at large or to any section of the public not consisting exclusively of members of an association of which the person publishing or distributing is a member;’ racial group’ means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and in this definition ‘ nationality ‘ includes citizenship;’ written matter’ includes any writing, sign or visible representation.”

(3)In section 7(2), after the words ” section 5 ” there shall be inserted the words

“or 5A”.

There is again the use of “insulting” as constituting an offence. Because the scope of what is racist is now so broad, in principle it could be used against  a very wide range of what is onsidered insulting.

Just a cosmetic exercise

In the light of these various laws and the Home Office’s , There is no reason to believe that the offence of insulting behaviour will be removed from the Statute Book in anything other than the pedantic  sense that the word “insulting” is removed from section 5 of the Public Order Act 1986.

It can also be seen from the Acts quoted how thoroughly the British state is equipped to deal with any dissent from its liberal internationalist politically correct ideology.

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