It is a piece of legislation drafted so broadly that the police are afforded too much discretion as to what amounts to criminality. This power, invested in the Totalitarian Authorities, is almost farcically Orwellian. A person is guilty of an offence if he uses threatening, abusive or insulting words within the hearing or sight of a person likely to be caused harassment, alarm or distress. Should the law criminalize insulting words? The freedom to disagree and to challenge is paramount to uphold our democratic freedoms. But yet, Brown and Ellis (1994), swearing at a policeman constituted an offense. Mater and Hould (1986), a gay kiss in a public place affronted common decency. Even the Christian Institute is currently campaigning for the word insulting to be removed from Section 5 as part of a forthcoming Freedom Bill. Liberty, the National Secular Society and Outrage all agree, contending that Section 5 inhibits free speech while criminalizing dissenting opinions and alternative lifestyles.
One is drawn to the recent case of Harvey v Director of Public Prosecutions (17 November 2011) that addresses this point and perhaps marks a tentative step towards a more commonsensical approach. Two police officers attended a complex of council flats and attempted to search a group of youths found at the premises suspected to be in possession of drugs. The scorned response from one of the aforementioned youths ‘f***, this man, I ain't been smoking nothing'. Furthering this and once the search had proved futile, ‘told you you wouldn't find f*** all'. When asked if he had a middle name, ‘no, I've f***ing told you no.' He was swiftly arrested and convicted of Section 5. However at the hearing, neither police officer nor the ‘degenerate throng of teenagers' who had been watching gave evidence that they had been harassed, alarmed or distressed by this conduct. Was the language used threatening, abusive or insulting? Were the Justices entitled to conclude that either of the police officers or the bystanders were likely to have been caused harassment, alarm or distress in the absence of any specific evidence to this effect? The answer, possibly to the former quandary but no to the latter. Unless the officers or the aforementioned throng gave evidence in court, it could not be inferred automatically that they would have been caused harassment, alarm or distress. In the future the prosecution would be required to adduce actual evidence that proved this.
Not quite the grand leap one would have hoped for. The hands of future courts have not been tied such that bad language is in itself insufficient to amount to Section 5 but perhaps the decision is indicative that, although such expletives are not particularly pleasant in polite society, it a disproportionate misuse of the English Legal System to criminize the use of such profanities.