Why should an insult be against the law?
What matters most: free speech or public order? And how much of the former must we sacrifice to ensure the latter? This question has vexed our legislators for many years. In 1936, with Mosley’s Blackshirts on the march in London’s East End, a new Public Order Act criminalised behaviour that was not of itself violent but was “threatening, abusive, insulting or disorderly” and that was intended or likely to cause a breach of the peace. The aim was to stop fascists screaming abuse at Jews in the streets; and while most civilised people wanted to shut the thugs up, there was a good deal of agonising over whether the wording was an unwarranted restriction of free speech, the beacon of liberty that marked us out from what was happening in Continental Europe at the time. On the other hand, the fear perpetrated by the Blackshirts was itself a threat to essential British liberties. A balance had to be struck and Parliament endeavoured to do so. This debate was revisited 50 years later, when the Thatcher government updated public order laws in 1986 to take account of the disturbances in Brixton and Toxteth and at a succession of industrial disputes, such as the miners’ strike and Wapping. Ministers also wanted to get a grip once and for all on the mayhem that had taken hold of our national sport. Every Saturday, the football terraces were a seething mass of contorted faces and vile chanting (so little change there, then). Crucially, section five of the Public Order Act 1986 removed the requirement for an intention to cause a breach of the peace. Instead, abusive or insulting behaviour was to be penalised if it was within the hearing or sight of a person “likely to be caused harassment, alarm or distress”. This marked a further retreat from free speech. As one legal textbook put it, the criminal law had been “extended into areas of annoyance, disturbance and inconvenience”. Here we are, 25 years on, and once again this provision is proving controversial, not least because it is being used to criminalise what many people might consider simply to be a point of view that others do not like. Tomorrow, a parliamentary campaign is being launched in an effort to persuade the Government to remove the word “insulting” from the Act after a series of arrests and prosecutions of Christians for expressing their opinions. They include a preacher who was convicted under section five for walking the streets of Bournemouth carrying a placard with the words “Stop Immorality, Stop Homosexuality, Stop Lesbianism”. Another case involved Ben and Sharon Vogelenzang, Christian hoteliers in Liverpool charged with insulting a Muslim guest because they engaged in a conversation about religion. Mr Vogelenzang was alleged to have said that Mohammed was a warlord, while his wife stated that Muslim dress is a form of bondage for women. They were acquitted, but campaigners argue that they should never have been arrested in the first place and that people like them would be spared months of worry if the law was amended. Other notorious arrests under this measure include that of a teenager who described the Church of Scientology as a “cult” and the Oxford undergraduate who was arrested for asking a police officer if he realised his horse was gay. Clearly, none of these “crimes” were envisaged as such in 1936, when a real menace stalked the land, or even in 1986, when the law was changed largely to stop abuse by football fans. The obvious problem is the subjective nature of an insult. While most of us can recognise abusive language when we hear it, in what way is it a crime to take issue with someone else’s opinion, or even their religion? This is likely to become more problematic as the gay marriage debate heats up. This measure was not in the Queen’s Speech, principally so that Her Majesty would not have to announce something opposed by the Church of which she is head. But when the consultation ends next month, the Government intends to legislate. As Lynne Featherstone, the Lib Dem equalities minister, said at the weekend, the consultation is not about whether to proceed, but how. Christian groups are worried that antipathy to gay marriage will fall foul of the law. In this they are supported by Peter Tatchell, the human rights campaigner, who sees how such a law can easily be abused on grounds of political correctness. It is not so long ago that it would have been used to stop gay pride marches. Nor are these isolated matters. Figures unearthed by the Conservative MP Dominic Raab show that in 2009, section five of the Public Order Act was used more than 18,000 times, mainly for the non-specified crime of insult. The Home Office has been consulting on this matter, but shows little inclination to do anything about it. If the debate around gay marriage is not to get ugly, the Government would be advised to change the law before people are hauled before the courts for defending their traditional understanding that matrimony, as the root of the word suggests, is the union of a man and a woman. In a free and civilised country, people should not be abusive or gratuitously offensive to each other; but they should be entitled to voice an opinion that someone else might find insulting. It is a hallmark of liberty that it allows a person to say something that is provocative, otherwise it is no freedom at all. John Milton put it best: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”
What can lawyers do to help people access justice now?
After a long fight and a knife-edge vote in the Lords, the Queen has given her assent to the Legal Aid, Sentencing and Punishment of Offenders Bill (Laspo). A significant number of people will no longer have access to professional help with legal problems. While the government frequently points to the not-for-profit (NfP) advice sector – notably Citizens Advice Bureaux and law centres – as the safety net for these people, these organisations are suffering their own crises. Any notion that they can fully serve the interests of those legally disenfranchised by Laspo is wishful thinking at best. The launch of alternative business structures has been mooted as a way of filling the gap, too, with proponents saying it will enable legal services to be delivered in innovative ways. But relying on the combined impact of Laspo and ABS is an explosive and haphazard approach to reforming the legal landscape. The deregulation of legal services, like the privatisation of public services, will not automatically improve them. In fact, the contrary may be true. Some not for profit organisations have set up social enterprises and started to introduce small charges for services as a way of surviving and bolstering free advice provision. But they face outright competition from legal providers who already charge fees and the widespread perception that you consult a solicitor if you can afford one, and a law centre or CAB if you can’t. Some people may try to litigate in person, with all the difficulties that entails. Many more simply won’t bother to go to court and will have to suffer the consequences of poor housing, debt, unfair welfare benefits decisions and employers’ misconduct without recourse to the courts. So what can lawyers do to help people negotiate this harsh landscape?
1) Not-for-profit organisations should be clear about their main aim: to provide services to those denied access to justice by the lack of legal aid. They should make it clear that any ABS they have created is independent of their free provision, and they are not speculatively exploring new markets at the expense of their neediest clients
2) The ‘for profit’ legal profession should recognise that while lawyers have no equivalent of doctors’ Hippocratic Oath, the law is more than simply a tool or trade: it is a glue that binds society. A proactive commitment, in one form or another, to make sure everyone is able to take their place within society is an essential part of being a lawyer
3) Clients’ needs are not just a potential source of revenue. They arise from the human condition
4) Resolving legal problems at an early stage is vital, and properly funded legal advice can enable this to happen
5) Nonetheless, it is not the job of the legal profession to resolve all the iniquities involved in access to justice. You do not blame plumbers for winter. Society as a whole is responsible for improving the lot of its citizens through both access to justice and education about rights and responsibilities.
David Cameron has confirmed the Government will outlaw drug driving as he praised the family of a schoolgirl killed by a cannabis user for their “brave” campaign to change the law. Lillian Groves was 14 when she was knocked down and the driver went on to serve just four months in jail. The Prime Minister said it “simply can’t be right” that the laws were not in place to punish drug drivers properly. Motorists under the influence of illegal substances can only currently be prosecuted for being behind the wheel if police can prove their driving has been impaired. Mr Cameron said: “I found meeting Lillian Groves’s family in Downing Street late last year incredibly moving. As they said at the time, it simply can’t be right that a schoolgirl like Lillian can lose her life and then we discover we don’t have the laws or the technology to punish drug drivers properly. “We want to do for drug driving what drink driving laws have done for driving under the influence of alcohol. That’s why we’re doing what we can to get drugalysers rolled out more quickly. “And this week we’ll publish a new drug driving offence so that driving under the influence of drugs itself is a crime, just like it is for drink driving. “Lillian Groves’s family should be congratulated for their brave campaign. I hope now that something good can come out of their tragic loss.” Under the crackdown, proposed as part of a wider Crime, Communications and Court Bill in the Coalition’s new legislative programme, drug driving will become a specific offence. Offenders will face up to six months in jail and fine of up to £5,000 as well as an automatic driving ban of at least 12 months. Police will carry a handheld drug detection devices, which will take a saliva sample, as well as a breathalyser to test erratic drivers. The machines are expected to receive approval from the Home Office by the end of the year. Road Safety Minister Mike Penning said: “Drug drivers are a deadly menace – they must be stopped and that is exactly what I intend to do. “The new offence sends out a clear message that if you drive whilst under the influence of drugs you will not get away with it. “We have an enviable record on road safety in this country and I want to keep it that way. “This measure will help to rid our roads of the irresponsible minority who would risk the lives of innocent motorists and pedestrians.” The move follows an independent review of drink and drug driving law in 2010. An expert panel will help to decide which drugs are covered by the offence.