Colleague Joel Bennathan QC notes the increase in reports of abuse of those in public life, notably the recent "Nazi" slurs levelled against Anna Soubry MP in the street. But is that kind of behaviour a crime, and were the police at fault for not intervening at the time?
The actions of a few pro-Brexit protestors in shouting “Nazi” at Anna Soubry MP have triggered a public discussion about abuse in public life and reportedly led to police around Westminster being told to enforce the criminal law [good they were told, perhaps puzzling they needed telling]. Was the abusive conduct a crime? With the normal health warnings about not knowing the fullest details, I would suggest the answer is “probably not”.
The offence under consideration is section 5 of the Public Order act 1986 that criminalises “threatening or abusive words or behaviour…within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby” unless that conduct was “reasonable”.
The tensions between free speech in a political context and the criminal law has been examined by the Courts on many occasions, most recently in Campaign Against Antisemitism v DPP  EWHC 9 (Admin) - judgment of 9th January - which was an unsuccessful attempt to judicially review the CPS’s decision to stop the private prosecution of a speaker at a pro-Palestinian demonstration for an alleged section 5 offence. There are several well-established propositions:
- “Distress” in section 5 takes its colour from its context alongside “harassment, alarm or distress”, these are strong words as they should be for an offence which can lead to prison or a fine, so “distress” needs real emotional disturbance or upset.
- Legitimate protest can be offensive and the right to freedom of expression would be worth little if it did no more than protect those holding popular, mainstream views.
- There is no single test for what amounts to the offence, but the Act that creates it is about public order, so harsh words spoken in a situation that is unlikely to lead to public disorder are correspondingly less likely to be the crime.
Perhaps many years in my legal youth defending strikers, protestors and hunt saboteurs has biased me in favour of the rights of those who shout, swear and cause upset for what, in their own opinion, is a good cause. Yet I find it hard to think that abusing an MP, used to argument, noise and robust language, as she was escorted by numerous police officers, is quite bad enough to cross the line and become a crime. The other side of that same line should, in any decent society, carry its own sanctions; those who shout, upset and bully others can be condemned, denounced, possible sacked by their employers or disciplined by any professional body to which they belong; but liberties whose roots predate the European Convention by hundreds of years should make us all wary of calling noisy, upsetting, even odious behaviour a crime.