<< Back February 2012 - Aughton Ainsworth respond to Government Consultation on Police Powers. Aughton Ainsworth provided a response to the Government Consultation on ammending section 5 of the Public Order Act. Home Office CONSULTATION ON POLICE POWERS TO PROMOTE AND MAINTAIN PUBLIC ORDER Response by Aughton Ainsworth, Solicitors INTRODUCTION Aughton Ainsworth is a law firm based in Manchester specialising in religious freedom and Human Rights cases. Aughton Ainsworth has acted in a number of high profile cases over the past couple of years, including cases involving alleged public order offences. This response is based upon our experience in dealing with such cases. ANSWERS TO QUESTIONS ON SECTION 5 OF THE PUBLIC ORDER ACT 1 Do you think there is a clear difference between ‘insulting’ words and behaviour and ‘abusive’ words and behaviour? Please give examples. Yes In a pluralistic society with many diverse opinions over a wide a range of subjects certain individuals or groups may take exception to anyone publicly expressing a view to which they are strongly against and feel insulted by the mere fact that such view is expressed, no matter how measured in tone such view is expressed. Abusive, on the other hand, is a deliberate attempt to use strong unpleasant and malicious language or behaviour against another person in order to cause harm or damage. 2 In your experience, are insulting words and behaviour less serious than abusive words and behaviour. Please give examples. Yes. Insulting words and behaviour are, by and large, a matter of perception of the aggrieved individual and is subjective whereas abusive words and behaviour can be judged objectively. Also, the intended effect of abusive words or behaviour is usually to inflict some form of emotional harm on another. On the other hand, insulting words or behaviour can be said or done with the interest of the other person in mind. For example, to warn an individual about the health issues involved in a lifestyle choice may be perceived as being judgmental and hence insulting. 3 In your view, does having insulting words and behaviour as a criminal offence restrict people from expressing themselves freely? Yes. There is clear evidence from the recent cases, as set out below, that the police are quick to arrest a person on the sole information of a person who has been offended or insulted with little in the way of investigation to verify such information. This approach by the police has a chilling effect on free speech. Many of these cases are widely reported in the media and the effect of this is to create a form of self-censorship. It appears odd that on numerous occasions recently the police have been forced to publicly apologise for their conduct and pay compensation and yet at the same the very same actions of the police are repeated. It also plays into the hands of individuals or groups who wish to silence any individual expressed publicly a view which they do not particularly like, simply by reporting a complaint to the police alleging that they have been insulted or offended. In such cases the police are quick to respond and take action. Even if such action is short of arrest, the police will ‘diffuse’ the situation by asking the individual to stop or move on. 4 In your view, would the removal of the word ‘insulting’ from section 5 have any particular impact on specific groups? Please give examples. Yes All members of society who publicly express a view on controversial issues and groups such as street preachers and protesters who come into contact with those who hold opposite views and whose aim is to cause trouble and prevent freedom of speech. 5 If you do have concern about the word insulting remaining in section 5, can you explain if this is due to interpretation of the word or the actual legislation? The legislation. Insulting words or behaviour should not be a criminal offence in a healthy democratic society. 6 In your opinion, is the reasonableness defence for insulting words (which is a statutory defence in section 5) an adequate safeguard against misuse? No. The recent cases demonstrate that it is not an adequate safeguard. 7 In your opinion, is guidance to police officers clear on when insulting behaviour constitutes an offence and an arrest should be made and is sufficiently clear to ensure consistency of decisions. The cases clearly demonstrate that police officers have little understanding of what constitutes an offence and have no understanding of how the fundamental rights to freedom of religion and expression under Articles 9 and 10 of the European Convention on Human Rights can only to be restricted as is ‘necessary in a democratic society’ and that legislation is to be read and given effect in a way which is compatible with the Convention rights. Such fundamental freedoms should not be left to guidance to be interpreted by police officers being asked to make an on the spot judgement sometimes in difficult circumstances. In one case of Anthony Rollins referred to below, the Detective Inspector from the Professional Standards Department investigating the complaint of Mr Rollins stated ’there is evidence that Mr Rollins breached Article 9 again when he breached the rights and freedom of others when he delivered his sermon’ This shows an astonishing lack of understanding that the Convention rights are there to protect individuals from interference by Public Authorities and does not apply between individuals. 8 Do you think that the threshold for arrest under section 5 is set at the right level? No. The cases show that many arrests are made on a formulaic basis only for the person to be released without charge or the case dropped before trial. The judge in the Anthony Rollins case at paragraph 69 concluded that the arrest ‘was all done as a matter of routine’ 9 Additional Comments We set out below a number of the cases we have acted on relevant to this consultation. Each case demonstrates how the police interpret the public order legislation. These cases are the tip of the iceberg and only come to light when a formal complaint is made. Each time a complaint is made against the police for false arrest or wrongful imprisonment valuable police time and resources are wasted in investigation the complaint and where it is found (or responsibility admitted) the police have acted unlawfully the police face paying tens of thousands pounds in damages and legal costs. The Cases Anthony Rollins v the Chief Constable of West Midlands (Birmingham County Court claim number 9MA11394). Mr Rollins, a street preacher who had been preaching the same message for 14 years was arrested, handcuffed, and kept in a cell for over 4 hours. He was charged with an offence that he had used ‘threatening and abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress’ contrary to section 5 of the Public Order Act 1984. The case was subsequently dropped. Mr Rollins made a complaint to the Independent Police Complaints Commission (the ‘IPCC’) but the IPCC did not uphold his complaint. Mr Rollins issued a claim for wrongful arrest, unlawful use of handcuffs and that his rights under Article 9 and 10 had been violated in the Birmingham County Court. The case went to trial. The court found that Mr Rollins’ words were not threatening, abusive or insulting and that the arrest and use of handcuffs were unlawful. The court also gave a declaration that Mr Rollins’ Convention rights had been violated. He was awarded damages and legal costs. The Police appealed the judgment to the Court of Appeal but withdrew it shortly before the appeal hearing. Dale McAlpine v Chief Constable of Cumbria 2010 Mr McAlpine, a street preacher in Cumbria, was arrested and charged under section 5 of the Public Order Act 1984 for preaching passages from the Bible relating to sin. Mr McAlpine was told by the arresting officer that saying that homosexuality was a sin was a hate crime. He was kept in a police cell for 7 hours. He was charged and appeared before the criminal courts. The criminal proceedings were subsequently dropped. Mr McAlpine made a claim for wrongful arrest. An out of court settlement was reached with the police agreeing to pay damages, legal costs and to give a personal apology to him. Cunningham and Abraham v Chief Constable of West Midlands 2008 Street preachers, Mr Cunningham and Mr Abraham, were preaching and handing out gospel tracts in a predominantly Muslim area in Birmingham. They were told by police officers in a very intimidating manner that they could not preach the Gospel in a Muslim area and were warned to leave the area or face being taken to the police station. A formal written complaint was made to the IPCC. The IPCC did not uphold the complaint. Nevertheless the police officer involved was given advice that was written into his note book. Salt and Light Cafe v the Chief Constable of Lancashire (incident on 19 September 2011) Two police offices walked into the Salt and Light cafe in Blackpool at a time when the cafe was full of customers. Jamie Murray, the owner, was told by one of the officers that a complaint had been made regarding offensive insulting homophobic material which was against the law under section 5 of the Public Order Act. The tone of the officer was confrontational and intimidating. The material referred to was a DVD of the Bible played on a flat monitor screen in the cafe with the sound turned off. The DVD displays Bible verses against a background of different scenes. Mr Murray was told that he could be arrested for playing the Bible if the material was offensive and insulting. He was questioned for more than 30 minutes and described it as an interrogation and that they were trying to put the ‘frighteners’ on him. Mr Murray became increasingly anxious that he may be arrested if he did not agree to turn off the screen. An apology of sorts was given by the police but a formal written complaint is to be made against the police. This is the same police force that ‘interrogated’ Joe and Helen Roberts and despite assurances given by the police in that case that they would review its procedures so that such an incident would not happen again, clearly the problem remains. In that case Joe and Helen Roberts, an elderly couple, telephoned their local council, Wyre Borough Council, and asked how much tax payers money was being spent on promoting homosexuality. Shortly thereafter, the couple were visited by two police officers and were interrogated for over an hour. The officers told them they had committed a crime although did not identify which crime had allegedly been committed. Proceedings were issued against both the Council and the police. The case settled with the police and the Council paying damages, legal costs and giving the Roberts’ a written apology. The police also said it would look into their procedures so that such incidents would not happen again. John Craven and Chief Constable of Greater Manchester (incident on 17 September 2011) A street preacher in Manchester City Centre was arrested under the Public Order Act 1984, marched to a waiting police van and detained for 19 hours in a police cell. From the time of his arrest at 7.15pm until midnight he was not given anything to eat or drink. At midnight he was given a drink and was given something to eat at 9.30 am the next morning. He was released without charge and given police bail to report to the police station at a later date. He subsequently received a letter confirming that there was no ground for bringing a case against him. Andy Robertson Open Air Mission (incident on 8 June 2008) Mr Robertson was stopped preaching by two police officers at the Gainsborough marketplace who were responding to a complainant made by Council officers. The Police officers referred to section 5 of the Public Order Act and warned that if he did not stop preaching he would be arrested. The Open Air Mission was set up in 1853. Mr Robertson had preached at the marketplace for ten years. Aughton Ainsworth January 2012