Why Andrew Mitchell should have been arrested

Posted on September 9, 2012

Arresting people for swearing is ridiculous. And yet, under Section 5 of the Public Order Act, it regularly happens.

Section 5 is a badly written, catch-all law which – as one former officer put it to me recently – “lets us take people off the streets if they haven’t committed a specific offence but we don’t really want them there”.

The precise wording outlaws anyone who:

(a)     uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b)     displays any writing, sign or other visible representation which is threatening, abusive or insulting,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Given the total lack of any definition of what constitutes “threatening, abusive or insulting words or behaviour”, and the overzealous nature of some (though far from all) bobbies on the beat, it is hardly surprising that the clause has been abused over the years. It has been applied to stop people making perfectly valid criticisms of Scientology, protesting against the murder and oppression of gay people in the Middle East, and saying religions are “fairy tales”, among many others.

Given that it is on the statute book, and that it is regularly used to arrest ordinary members of the public for far less serious behaviour than that displayed at Downing Street last week, Section 5 should surely have been used to arrest Andrew Mitchell, the Chief Whip.

Instead, he was allowed to swear repeatedly at a police officer, despite the police log’s report that bystanders looked “visibly shocked” – which seems to my lay perspective to qualify as using “insulting words…within the hearing or sight of a person likely to be caused harassment, alarm or distress”.

How many plebeians would be allowed to get away with that with only a verbal warning, rather than a trip to the cells?

Giving greater privileges and more freedom under the law to members of the Government than is given to the people at large prevents Westminster from understanding how bad the criminal law of this country has become. Leading the Chief Whip away in cuffs would have been an absurd scene when his sacking or resignation should be the sensible outcome, but it would have woken our representatives up to the excessive powers of Section 5.

Until that happens, what hope is there that they will realise the urgent need to reform the Public Order Act?

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Categories: Opinion, Politics, Westminster

5 Responses

  1. Nick:

    You are wrong. Here is the relevant case


    Swearing at police is not a crime because officers hear foul language “too frequently” to be offended, a judge has ruled.

    Magistrates at Thames Youth Court found him guilty in March last year after concluding Mr Harvey’s expletives were uttered in a public area while a group of teenage bystanders gathered around.
    “There were people around who don’t need to hear frightening and abusive words issuing from young men,” the magistrates said.
    However, bringing his appeal, Mr Harvey challenged his conviction claiming that no one within earshot – let alone two hardened police officers – would have been alarmed, distressed or harassed by his swearing.
    Allowing the appeal, Mr Justice Bean said the only people nearby were the police officers and the group of youths – many of whom may have been “sympathetic” with Mr Harvey.
    The expletives he used were heard “all too frequently” by police officers on duty, said the judge, and so were unlikely to have greatly disturbed them.

    So you need to find the bystanders, get them into police stations for statements etc.

    That means you need to repeat what is said. How can you do that? If they were offended the first time round, aren’t the police also committing an offence repeating them etc?

    26.09.2012 13:16 Reply

  2. Baggy:

    All he had to do was open the bloody gate as had been done on numerous occasions previously, but no they would rather leak some lies to the press. Yes I think the police lie and are doing so again.

    26.09.2012 13:40 Reply

  3. Major Bonkers:

    The other thing that doesn’t really surprise me is the presence of these ‘visibly shocked’ members of the public.

    Who are they? Did Plod get their names and addresses? Or perhaps they were just added to the notebook in order tomake the charge stick, should it have come to that.

    26.09.2012 14:23 Reply

  4. Mike:

    Has nobody heard of discretion used by Police Officers where one Officer may take a different action to a set of circumstances to another Officer?. You really want that to be abolished altogether? Remember when they could use discretion over speeding cases (ambulances, fiire service etc) but the ‘not fair Sir’ crowd got their way and ALL speeding vehicles had to be done resulting in much wailing etc from the , mostly, same hypocritical crowd.

    And whilst were at it why not refer to the Officers in these various incidents in less general terms than ‘the police’ It is not ‘the police’ involved. It’s one, two or a handful of a rather large organisation. Next time a kiddie is murdered or a granny raped and beaten up by an individual or a few of the general public the headlines should read ‘British Public have….. again’ This will mean YOU are equally responsible for the actions of someone you don’t know on the other side of the country.

    Major Plonker can maybe tell us which charge it was that the officer was trying to make stick. The parting shot from Mitchell was that the Officer hadn’t heard the end of this. Seems to me to be a prudent thing to do to write up the incident. I see very little comment about this aspect of Mitchells outburst .Of course, keyboard heroes like Major Plonker would never do such a thing. Teenagers stuck in front of a computer in a tisssue littered bedroom have never been in that situation to feel their job threatened.

    26.09.2012 15:35 Reply

  5. Richard Baron:

    I agree that section 5 is appalling. Not only is the word “insulting” far too broad. The requirement is only that someone was likely to have been caused harassment, alarm or distress. If they were not actually caused harassment, alarm or distress, that is no defence, so long as they might well have been caused any of those things.

    There are, however, defences should one have the misfortune to run into an officious police officer (and I should say that I think the police get it right, and do not go over the top, most of the time, and that we owe them a great debt for their good and brave work). There are the obvious polite “Can I see your warrant card please” and “Are you deteining me, officer?”. But there is also the option to note down the name and number on the warrant card, and at the earliest opportunity, announce on one’s blog and tell the local press exactly what happened, and the name and number of the officer. We are often reminded by the Police Federation that a sworn constable (as distinct from community support officers and the like) is not just an employee of the relevant force. He or she is also an independent officer of the law, personally responsible for upholding the law. So I reckon that he or she should always be named in any account of his or her actions.

    Wandering a bit away from the immediate topic, I think this should be a general principle for all government officials. We should never read in the press “an official said/did such and such”, but “Joe Bloggs, an official in the Revenue’s Croydon office, said/did …”. The press’s polite connivance at the anonymity of officials discourages a sense of personal responsibility.

    26.09.2012 22:57 Reply

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