Section 5 of the Public Order Act 1986 Reshaping the Future of Free Speech in the United Kingdom: The Rise of a Tyranny

• Author: Perry Swanson
• Position: BCL (Law and French) (Swansea), CDT
• Pages: 141-153

[2014] COLR

141

SECTION 5 OF THE PUBLIC ORDER ACT 1986 RESHAPING THE

FUTURE OF FREE SPEECH IN THE UNITED KINGDOM: THE RISE OF A

TYRANNY

Perry Swanson*

A INTRODUCTION

‘The core right of citizens in England to express unpopular ideas in public is

insecure.’1 This is an issue that is worryingly reflected in today’s society and has

called for critical discussion into the wording of Section 5 of the Public Order Act

1986 (s 5), and the inclusion of the term ‘insulting’ condemned as a menace to free

speech and the right to protest.2 The inclusion of the term ‘insulting’ within s 5 is

often cited as leaving the boundary between free speech and the criminal law

unnecessarily blurred. This paper will delve into discussion on the desirability of

reforming the Public Order Act 1986 and further providing an evaluation on the

position taken by the United Kingdom in a post-HRA era.3 It will critically analyse

both sides of the argument as to whether free speech should be upheld in the name of

a democratic, self-governing social order or alternatively whether we should

criminalise such speech so as to confer a protection to the public to go about their

business without being gratuitously insulted.

B ANALYSIS

The Oxford English Dictionary defines the term ‘insulting’ as ‘scornfully triumphing

over another, treating him with contemptuous abuse.’4 This term as incorporated into

s 5 has been the catalyst of much debate and controversy pertaining to the boundary

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*BCL (Law and French) (Swansea), CDT.

1 James Weinstein, Extreme Speech, Public Order and Democracy (Oxford University Press, 2009) 60.

2 Peter Tatchell, Reform Section 5 Campaign <http://reformsection5.org.uk/2012/05/home-secretary-

under-pressure-to-reform-public-order-act/> accessed 24 February 2014.

3 Human Rights Act 1998.

4 John Simpson & Edmund Weiner, The Oxford English Dictionary (2nd edn, Oxford University Press:

Clarendon Press 1989).