Photo by Sean Gladwell

Censorship by default

The PCSC Bill threatens ordinary people by criminalising “inconvenient” speech

Artillery Row

A friend of mine was recently interviewed under caution by the police. His offense? Reading the Bible aloud in a calm voice and steady tone outside a railway station. He was left waiting to hear back for one month and then advised in writing to “be careful with what you say in future when reading outside”. The police were trying to grapple with whether his reading was “abusive” and harassing under the law. The result was chilling. 

While nearly all street preacher police cautions and arrests eventually come to nothing, a worrying trend has emerged over the years. The police have seemingly maintained an overly cautious approach to suppressing “potentially offensive” words in public while they take time to interpret the meaning of the law.  

At present, the Police, Crime, Sentencing and Courts (“PCSC”) Bill, due to be debated in the House of Lords in September, will only compound these issues.  

A major theme of Part 3 of the PCSC Bill is the interaction of the police and citizens in relation to public demonstrations and protests. Triggered by highly disruptive protests that have been organised around the country in recent months and years, often involving some element of criminal damage, clauses in the Bill aim to give police additional powers to more effectively respond.  

Anti-social behaviour restraints can easily lead to censoring normal people on the streets

With any laws that restrain public behaviour, we must beware the potential ramifications to every-day, law-abiding citizens exercising their right to free expression. Recent legal history testifies only too poignantly to unintended consequences of broadly worded laws. Public Space Protection Orders (including “buffer zones” created by at least three local Councils to criminalise peacefully praying women from offering their counselling services to others in specific designated public areas) have shown that anti-social behaviour restraints can easily lead to censoring normal people on the streets.  

With the current government’s insistence on the free speech agenda written into the text of the Conservative manifesto and the Higher Education Bill, it is surprising that the Commons failed to take hold of opportunities to strengthen civil liberty protections when the PCSC Bill was debated before the summer recess.  

At the forefront of the free speech opportunities is the need to more tightly define what amounts to disruptive public behaviour. The Bill, if passed today, would give police broad powers to impose conditions or arrest people if their public expression causes “serious unease, alarm or distress”, or even “inconvenience” to bystanders; concepts that are highly ambiguous and incredibly subjective.  

The potential for hampering legitimate free expression is undeniable. I may feel “serious unease” with my neighbour’s public poster display or “one-man protest” (also written into the Bill), whereas you may be provoked into starting a conversation with him. I may be “alarmed” by a street comedian’s words or actions, whereas you might consider them quirky or funny. In a society where “alarm” and “unease” are felt when some people listen to the Bible, see historic statues in university colleges, or read definitions of sex and gender roles, this concern is not just hypothetical. 

Offences under the Public Order Act (“POA”) 1986, introduced over thirty years ago to tackle disruptive crimes such as the high-profile riots in Southall and Brixton, contain classic examples of ambiguous words that have seen many innocent people arrested without justification. Section 5 POA was included to tackle “harassment, alarm and distress”, from “threatening or abusive words or behaviour”.  Then elderly grandfathers were detained and refused food and essential medicine for fifteen hours while police deliberated whether their behaviour was “criminal”. 

Dozens of street preachers have been handcuffed and interrogated by police

Despite the additional word “insulting” being removed in 2014 by then-Home Secretary, Theresa May MP, after lobbying efforts of groups who were concerned that the “right not to be offended” should not be implied within the law, the word “abusive” under the POA still grants police far more discretion than is justifiable in an era of free speech. This past year alone, dozens of street preachers in addition to my friend have been handcuffed, arrested, detained and interrogated by police who suspect them to have been “abusive” to passers-by who disagree with their religious stance, even when their tone has been staid and volume moderate.  

While the PCSC Bill legitimately attempts to give police more powers to restrict genuine anti-social behaviour, the Lords need to be mindful of the unintended consequences of more legal uncertainty. The Public Order Act should be amended by the PCSC Bill to specifically clarify that only words and conduct that are more than insulting should amount to “abusive” and be criminalised. Anything less than this would undoubtedly see everyday speech criminalised and cause untold confusion for the police, prosecutors and courts as they try to interpret the law. 

If an amendment of this kind is ignored, the unintended consequences to some of our most fundamental and cherished human rights the rights to free speech and free expression could be dire. We can expect to see many more everyday citizens denied basic freedoms.


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