Removal of ‘insulting’ from section 5 and 6(4) of the Public Order Act 1986.” NAG’s response to the draft guidelines.
In April 2013, section 57 of the Crime and Courts Act amended sections 5 and
6(4) of the Public Order Act 1986 by removing the word ‘insulting’. It is
anticipated that this amendment will come into effect during early 2014 and the
police service, through the College of Policing, is preparing for this by
developing guidance for officers. NAG was asked to comment on the draft guidelines. Below is NAG’s response.
Response to College of Policing Document, entitled
“Draft Guidance – Amendment to section 5 and 6(4) of the Public Order Act 1986.”
Name: Duncan Heenan
Organisation: Naturist Action Group
Additional Information: 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.
Naturist Action Group’s response
We have been invited to comment on the document as we made a submission on the proposal of these amendments when it was open for public consultation. We are doing so before the deadline of 25th September 2013.
We will not comment in detail on the document as much of it is restatements of the law, and the operational guidelines are no different from those applying to all areas of policing. Instead we would like to make two general points.
Firstly, we do not believe that the guidelines give sufficient emphasis to the culture change this amendment reflects, and which Parliament is passing in to law. The removal of ‘insulting’ from the S5 and S6(4) of the Public Order Act 1986 was undertaken at the initiation of the Home Office and after considerable consultation, and the underlying reason was, as stated at 3.1 of the draft guidance, “to balance the protection of the public with the need to protect civil liberties.” In making this change, Parliament is clearly indicating that civil liberties were being too closely circumscribed by merely ‘insulting’ words or behaviour (where there was no actual harm, or threat of harm) being illegal. Freedom of speech and expression were being curtailed and policing of this provision had led to a number of instances of disproportionate policing. The culture change Parliament is trying to achieve in this change is to make society more tolerant of peaceful dissent and diversity, such that differences of behaviour from the norm, and different opinions should be allowed to happen, however distasteful they may be to others, so long as no actual harm is done or threatened. It is important that police officers handling incidents are aware of this culture shift, and reflect it in their approach. The guidance notes do not make this clear, but should do so in plain language or policing will still be disproportionate allowing ‘mountains to be made out of molehills’. This is necessary, as the effects of heavy handed front-line policing can be traumatising on members of the public, even when no charges are brought, and policing should always be guided by the law rather than individual officers’ views.
Secondly, our remit is to consider matters concerning naturism and naturists, and there have been occasions where prosecutions have been based on an interpretation of simple nudity as being ‘insulting behaviour’ towards anyone who may witness it. The Crown Prosecution Service has recently issued a document entitled “Nudity in Public – Guidance on handling cases of Naturism”. The thrust of this document is to emphasise that nudity in a public place is not, per se, illegal and only becomes relevant to the law when it forms part of some other act which is itself illegal. Taken with the CPS guidance, the removal of ‘insulting’ from the Public Order Act is a clear statement by Parliament that simple nudity is not a matter which should concern the police, unless some other, illegal, act is involved. There appears to exist within the police a presumption that anyone who is naked must ‘be up to no good’. In the case of genuine naturists this is the opposite of the truth, as it would be a very stupid criminal who would make themselves both obvious and vulnerable by carrying out an illegal act in the nude. There is no evidence of any genuine correlation between nudity and criminality. The guidance notes should emphasise that simple nudity can not be viewed as illegal because it is not ‘insulting’, and merely ‘insulting’ behaviour is no longer illegal. Similarly, the CPS’s new guidelines on Nudity in Public emphasises that a proportionality of response is vital, and a response to a situation which is not illegal should be taken no further than sufficient investigation to confirm that no offence has been committed.
On behalf of Naturist Action Group
22nd September 2013