“Insulting words or behaviour”: Section 5 of the Public Order Act 1986

The Government has now announced that it is “not minded” to challenge a Lords amendment to the Crime and Courts Bill which would remove the word “insulting” from section 5 of the Public Order Act 1986. Section 5 makes it an offence to use “threatening, abusive or insulting words or behaviour, or disorderly behaviour” or to display “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”.

Section 5 has been used to arrest and/or prosecute (for example) 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. Police charged a teenage anti-Scientology protestor, although the charges were later dropped, as they were in a well publicised case of a student arrested for calling a police horse “gay”. Hotel owners were charged (although later acquitted) following a religious discussion with a Muslim guest. The Human Rights organisations Liberty and Justice and the Joint Committee on Human Rights (JCHR) have argued for some time against the current wording. In a response, the previous government said in 2009 that removing the word insulting would leave courts to decide whether particular words or behaviour were “(criminally) abusive or merely (non-criminally) insulting”. It proposed instead to deal with the issue through guidance.

The “Reform Section 5” campaign, supported by groups as diverse as the National Secular Society and the Christian Institute, has commissioned polling of MPs. The most recent poll, based on responses from 154 MPs, suggested that a majority of Liberal Democrat and Conservative Members backed reform.

There have been several attempts to amend section 5. In October 2011, the Government published the consultation document on the issue, but it has yet to publish a response. At the Lords report stage of the Crime and Courts Bill [HL] the Government resisted an amendment to remove the word “insulting”, but this was agreed to on division. However, in the Commons second reading debate the Home Secretary said that whilst the Government support the retention of section 5 as currently worded, it is “not minded” to challenge the amendment in the light of assurances from the Director of Public Prosecutions.