Is “Fuck Boris” printed on a t-shirt really a breach of s5 of the Public Order Act, 1986?
This video encapsulates the danger of thinking, “I must be guilty because the cops say so” – and it really makes my blood boil.
The starting point is that there is no right not to be offended – and the officer’s missing the point of s5 by worrying about the possibility of someone possibly being, “offended” by the shirt.
Here is the law (s5 of the Public Order Act, 1986).
Is “Fuck Boris” “abusive” language under s5(1)(b)?
Because, “abusive” is not defined in the Act, the court will use it’s ordinary dictionary meaning.
“Using rude or offensive words”.
Is “Fuck Boris” really “rude or offensive”? (“Insulting” was removed from s5 by amendment in 2014. See College of Policing guidance for context here).
Even if the Magistrates were to find, “Fuck Boris” to be abusive, the key issue, which these police officers are missing, is the context in which it was worn.
s5 requires that those abusive words must be said (or written/visible representation) “within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”.
This video context isn’t a children’s nursery or church service, it’s a Black Lives Matter march.
Do these officers really believe that there is anybody at the BLM march who’s likely to be caused, “harassment, alarm or distress” by this t-shirt?
Harvey v DPP is authority for a few things – including the absolute need for the Crown to prove, with evidence, harassment alarm or distress.
One quote from Harvey which may be insightful in the above video situation is this:
“The only possible candidates for being the victims of harassment, alarm or distress, other than PC Challis and PCSO Mcllvaney, were the group of youngsters who gathered round during the exchanges, according to the case statement, or other neighbours. As to the group of young people, it may be inferred that they were interested in what was going on and perhaps even that they were sympathetic to the appellant and his companions rather than the police. There was, after all, a scuffle which was the subject of the charge on which Mr Harvey was acquitted. But it is wrong to infer in the absence of evidence from any of them that a group of young people who were in the vicinity would obviously have experienced alarm or distress at hearing these rather commonplace swear words used”..
In any event, this shirt was worn in the context of a political rally. We still have the right to free expression under the European Convention on Human Rights.
If the police really want to go there, they need to show that their interference with this Convention right is necessary and proportionate to preserve public order.
The recent case of Campaign Against Antisemitism v DPP should make it clear that, “intemperate and offensive” language is not enough for the police to prove an offence under s5 of the Public Order Act.
The PC in the video says that someone could find the shirt, “offensive”. But that’s not the question he should be asking and he’s got the law wrong.
My simple tip
You won’t know if someone is guilty of an offence unless you know the law.
The woman in the video said that the police told her to cover up the shirt or be arrested. As a result, the woman said that she covered up the shirt and that the police took no further action.
The Guardian reports that the police have apologised to Ms Jessie-lu Flynn for their unlawful direction. (Carefully worded to avoid saying, “unlawful detention”?)
But imagine if she had refused to cover up. These officers no doubt would have arrested her. That could have easily led to a charge and a magistrates court trial.
Perhaps I should amend my simple tip to, “never assume that the other guy knows the law”.