Response to Consultation Document from Home Office, entitled
“Consultation on police powers to promote and maintain Public Order. October 2011.”
Name: Duncan Heenan
Naturist Action Group, Dolphins House, Boxers Lane, Niton, PO38 2BH
Naturist Action Group is a UK based Study group, dedicated to researching all aspects of naturism, educating the public and Authorities about naturism, and encouraging the provision of facilities for naturism. We are not a membership organisation, but we have many supporters and we consult and research widely on the matters we consider. We are independently funded, and have no connection with any other organisation.
We are responding only to the proposal to amend Section 5 of the Public Order Act, as the remainder of the Consultation falls outside our remit.
Responses to Consultation Questions:
1. Do you think there is a clear difference between ‘insulting’ words and behaviour and ‘abusive’ words and behaviour? Please give examples.
In common parlance there is no clear difference between ‘insulting’ and ‘abusive’ words, as the terms tend to be used interchangeably, including by the front line police.
However, we feel that there is a clear difference regarding behaviour. ‘Insulting’ behaviour tends to describe that which annoys or upsets the subject of it, but does not actually harm them. However, ‘abusive’ behaviour is aimed at inflicting some form of harm on the subject.
An example might be: Making a two fingered gesture at someone may be considered insulting behaviour, but it is not abusive, as it can be ignored by the subject and does not do them any actual harm. However, throwing something at someone is abusive, as it could harm the subject if it strikes them in which case it could not be ignored.
2. In your experience, are ‘insulting’ words and behaviours less serious than ‘abusive’ words and behaviours? Please give examples.
As in 1 above, we would draw a distinction between words and behaviours.
As we feel there is no clear distinction in the way in which the adjectives ‘insulting’ and ‘abusive’ are used to describe words, there can be no difference in their seriousness.
However, in relation to behaviour, we feel that ‘insulting’ behaviour is less serious than ‘abusive’ behaviour, for the reasons given above, i.e. abusive behaviour is aimed at harming the subject in some way, and can not be ignored, whereas ‘insulting’ behaviour may be annoying or upsetting, but can be ignored and will not actually harm the subject.
The example given in 1 above applies again. We would consider it more serious if someone threw an object at another person, than if they simply made a rude gesture at them.
3. In your view, does having ‘insulting’ words and behaviour as a criminal offence restrict people from expressing themselves freely?
Yes, we feel strongly that having ‘insulting’ words and behaviour as a criminal offence restricts people from expressing themselves freely. Our view accords very closely with that expressed by Lord Steyn In R v Home Secretary, Ex Parte Simms  2 AC 115 at 126, HL, in which he explained that freedom of expression is the lifeblood of democracy and a public safety valve:
“Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J. (echoing John Stuart Mill), “the best test of truth is the power of thought to get itself accepted in the competition of the market:” Abrams v United States (1919) 250 US 616, 630 per Holmes J. (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them.”
We also believe that freedom of expression should not be criminalized by allowing no element of ‘insult’ as part of it. This view was famously summed up by Lord Justice Sedley in DPP REDMOND-BATE v. DIRECTOR OF PUBLIC PROSECUTIONS  EWHC Admin 732 (23rd July, 1999):
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”
Freedom of expression does not relate only to freedom of speech, but of all aspects of life. The choice of what to wear, or not to wear is a genuine part of human expression (Otherwise why does the fashion industry exist?), and naturists believe that choosing to be naked sometimes is an important piece of freedom of expression for them.
Accepting that freedom of expression has to be subject to the protection of others, we feel that no-one needs to be ‘protected’ from nudity. We are supported in this view by two independent surveys carried out by NOP & Mori ten years apart (the most recent being this year), which showed an overwhelming majority of the population considering naturists as ‘harmless’. The trend between these polls shows public opinion becoming even more tolerant towards innocent nudity, and the later (contemporary) one actually concludes that there are about 4 million people in theUKwho consider themselves as Naturists.
Only the subject of an ‘insult’ can decide whether what is said or done is insulting to them, as one person’s insult is another’s compliment. To criminalize someone for something that is undefined objectively, is not harmful, and is judged mainly by the subject, is disproportionate (under the European Convention on Human Rights Article 10), unfair in terms of natural justice, and very wasteful of public resources.
4. In your view would the removal of the word ‘insulting’ from section 5 have any particular impact on specific groups? Please give examples.
From the point of view of naturists, it is the categorisation of nudity as ‘insulting’ behaviour by police or the Courts which is of concern. There have been many instances (details available if requested) in recent times when non-sexual, non-aggressive nudity has been considered ‘insulting’ by ‘a member of the public’. This term is in parenthesis, as naturists are members of the public also. Such ‘insults’ are in fact only a difference of opinion as to the acceptability of seeing the naked body. However, the police often feel they have to intervene, and events then develop a momentum of their own. Occasionally this has led to prosecutions; often the case has been dismissed and in a few cases there have been convictions. Whether there is a conviction or not, it is a traumatising process for the accused. Where there is a conviction it can be a life and career ruining event; and all for something which is in fact no more than a minor personal upset to someone who happens to dislike the sight of the human body. In all cases there is a large commitment of public resources. The results seem inconsistent, almost arbitrary, and clearly too much the result of the personal views of individual members of police and the Judiciary. Much of this can be traced back to the lack of definition as to what is ‘insulting’, making such cases too dependent on personal interpretation, which is always subjective.
We feel that S5 of the Public Order Act is an inappropriate statute to use in any event, if there is an incident involving nudity. However, it is used for such prosecutions as it is so open to personal interpretation, and personal prejudice. If the nudity occasions no other offence, it is legal anyway. If the nudity is used as a deliberate means of causing alarm and distress, then S66 of the Sexual Offences Act 2003 is the appropriate legislation to use, as it is both framed for that specific purpose, and more recently so, by Parliament. If nudity is part of an unacceptable sexual act then it should be prosecuted under the Common Law offence of Outraging Public Decency. The Public Order Act 1986 was framed to give the police powers to deal with genuine Public Order issues, not to pander to individuals’ prejudices and prudery (including those of the police). If an individual feels aggrieved by someone else’s nudity, this should be dealt with as a civil matter between the parties, unless some real harm has been done. We would liken this to the playing of loud music, where intervention by the police is rarely involved. For example, at present naturists live in fear of being criminalized if someone with an axe to grind catches a glimpse of them in their own garden. This is unreasonable and should be corrected.
If ‘insulting’ behaviour were to be removed from S5 of the Public Order Act, it would take a whole raft of minor matters out of the criminal law, with a consequent reduction in public resources which are currently devoted to it, disproportionate to the seriousness of the issue. It would have a significant benefit to naturists in that it would allow them their chosen lifestyle in appropriate circumstances and allow them freedom of expression less restricted by the threat of being classed as ‘criminals’, simply because their lifestyle choices are those of a minority.
The other ‘specific group’ to benefit from the removal of ‘insulting’ from S5 is the Public Purse. To raise the threshold of criminality in this way will help relieve the Police and Courts from using public money in having to enforce the prejudices and dislikes of people who have suffered no real hurt.
We therefore support the proposal to remove ‘insulting words or behaviour’ from that section.
5. Do you have concerns about the word ‘insulting’ being left in section 5, can you explain if this is due to interpretation of the word or the actual legislation?
Yes, we have serious concerns about the word ‘insulting’ being left in section 5 for both reasons – interpretation and the actual legislation.
As explained above, we feel that the Public Order Act 1986 contains no guidance on interpretation as regards ‘insulting’. This leaves it up to the person complaining of being insulted, the police, theCPSand the Courts to put their own subjective interpretations on the word. This results in inconsistent treatment by all concerned, a lack of clarity, and fear of prosecution by innocent naturists who can not rely on The Law because they can not know what it is in advance.
Equally important we feel that ‘insulting’ is out of place in a Public Order Act. The Act was not framed as a way of allowing one group to subjugate the views or means of expression of another. It was meant as a way of giving the police the powers needed to maintain public order, and no more. The ‘catch all’ nature of Section 5 generally, and ‘insulting’ in particular is leading to abuse by those in authority to impose their views on society. The more successful they are in doing so the more they will be encouraged to use this section. Adequate safeguards exist in Civil Law for those who feel ‘insulted’, but while the public purse can be raided, individuals will continue to do so in order to get others to fight their battles for them.
6. In your opinion, is the ‘reasonableness’ defence for ‘insulting’ (which is a statutory defence in section 5) an adequate safeguard against misuse?
No, we do not believe the ‘reasonableness’ defence in section 5 is an adequate safeguard, as it is every bit as open to interpretation as ‘insulting’, and is just as likely to be interpreted in the same way. In relation to events involving nudity, there is considerable evidence from recent cases (details available on request) that there is a culture within the police and Judiciary which considers any nudity in a public place, or even visible from a public place, to be unreasonable. The ‘reasonableness’ defence is therefore nullified in advance by a prejudgement at worse, and lack of definition at best.
The ‘Mens Rea’ defence available under S6 (5) of having to prove intention, is also to a large degree self defeating in the case of nudity being prosecuted as ‘insulting’ behaviour; if it is judged to be insulting simply to be naked. Being naked is as much a deliberate act as is being clothed, and so is automatically taken to be ‘deliberately insulting’ if it is judged ‘insulting’ at all. Again, it is too subjective a judgement.
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?
No, in our opinion, guidance to police officers is woefully inadequate. We believe this for three reasons.
Firstly the evidence of what has happened in recent years regarding the policing of nudity. There have been a series of detentions, arrests, cautions, prosecutions, and no-action-taken police attendances (we can supply details on request) on issues relating to nudity, which are inconsistent and apparently governed only by the officers’ own opinions. We even have on file a letter from a police inspector stating that nudity in public is not illegal, but warning against doing it! There seems to be a general lack of knowledge within front line police officers, of the law relating to nudity. This is so much so that officers still regularly use the term ‘indecent exposure’, whereas the offence ceased to exist in 2003, when the Vagrancy Act 1826 and the Town Police Clauses Act 1847 were replaced by the Sexual Offences Act 2003. Details of such recent incidents are available on request.
The second reason lies within Section 5(5) of the Act itself, which states:
“In subsection 4 ‘offensive conduct’ means conduct a constable reasonably suspects to constitute an offence under this section…..” In other words it is deliberately left to the constable to decide what he considers ‘offensive’. As ‘offensive’ and ‘insulting’ are often confused in common parlance, this is an instruction from the Act to the police to decide for themselves what is acceptable, rather than referring to any objective standard.
Thirdly, the 2010 police guidance document from the National Policing Improvement Agency entitled “Manual of Guidance on Keeping the Peace” gives guidance, based on the relevant legislation. However this is given in such general terms it is open to personal interpretation, and it contains no reference to nudity. For example, at2:36it advises that a Breach of the Peace occurs only when harm is being done or violence is being provoked. In none of the incidents involving nudity which we have studied (details available on request) was there any violence, threat of violence or likelihood of violence, and yet arrests were made. We know of no evidence that non-aggressive, non-sexual nudity does any harm. Prejudiced reactions to nudity can do harm, but the offender then is not the naked person, but those who choose to react violently. There does however seem to be a widespread assumption within the police that a person who is naked must, in some way, be doing wrong and this often provokes action which would not be the case if the person were clothed, but engaged in the same activity.
8. Do you think the threshold of arrest under section 5 is set at the right level?
In the case of ‘insulting words or behaviour’ we do not feel arrests should be made at all, so long as there is no violence or threat of violence involved. In relation to nudity, as argued under previous questions, we believe that no harm is actually done to anyone by nudity per se, and it has been stated by both police officers and a number of judges that it is not illegal. For example, various police forces (e.g. Hampshire Constabulary & The Metropolitan Police) consulted by the organisers of the World Naked Bike Ride(s), stated that no law forbids nudity in public. Similarly, In R v Collins Bournemouth Magistrates Court 2011, the District Judge opened the proceedings by stating that nudity in public per se is not illegal. Invoking Section 5 in such matters where no criminal offence is involved, is disproportionate, and an abuse of power. There are sufficient powers under Section 4 for the police to act in genuine Pubic Order matters, and section 5 could be repealed in whole without compromising the intentions of Parliament when it was passed. However the removal of ‘insulting’ from section 5 would make a good start in raising the threshold for arrest to a more appropriate level and we would support such a move.
9. Please provide any comments in the box below.
Naturist Action Group is currently engaged in a long running study of the policing and Judicial treatment of nudity, involving an in depth study of the use of the Public Order Act 1986 to do so. In time we intend to make a submission to the appropriate authorities for changes aimed at making the treatment of public nudity fairer, less threatening, consistent, proportionate, practical and just. We will not be ready to make this submission for some time yet, so in this document we have addressed only the matters raised for consultation, principally the possible removal of ‘insulting’ from section 5 Public Order Act 1986.
We have no comment to make on the proposed powers to require the removal of face coverings and to impose curfews.
Signed, for and on behalf of Naturist Action Group
Dated 6th January 2012