Tony Freitas

— Tony Freitas is the Head of the Criminal Law Department at McKinnells Solicitors in Lincoln.

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A campaign group called Feel Free to Insult Me has been set up recently and is busy attracting publicity to have section 5 of the Public Order Act 1986 amended.

This section makes it a criminal offence to use threatening, abusive or insulting words or behaviour within the hearing or sight of someone who is likely to suffer harassment, alarm or distress as a result. The campaign group wants to leave in threatening and abusive, but decriminalise the insulting element.

The group itself is an unusual mix, being headed by Peter Tatchell, the gay rights campaigner and David Davis, the former shadow Home Secretary as well as various religious groups.

Tatchell himself has often been on the receiving end of insults, as well as dishing quite a few of them out himself, but he now wants to stop the police prosecuting anyone who has insulted someone else, as he and the other group members see it as restriction of free speech.

The 1986 Act was preceded by The Public Order Act 1936, which it repealed. That too made it a criminal offence to use threatening, abusive or insulting words or behaviour, but the consequences under this earlier act was that it could cause a breach of the peace rather than harassment, alarm or distress.

The 1936 legislation was passed at a time when Oswald Mosley’s blackshirt parades in London often ended in violence and was an attempt to control such behaviour and give the police wide powers to arrest those involved.

In fact, the control of public order goes back to the 14th century, with the Justice of the Peace Act 1361. This gave justices of the peace power to bind over anyone who had behaved in what would today be regarded as an anti social way.

It was not a criminal sanction, the defendant being required to pay a bond and was then bound over to keep the peace for a future specified time. If they subsequently breached the order then the bond would be forfeited to the crown.

The current campaigners for the abolition quote some examples, which they say, justify their belief that the act should be repealed. For example, a student at a demonstration was arrested when he asked a mounted policeman if his horse was gay.

Another student was arrested for demonstrating outside the Church of Scientology holding a placard saying it was a dangerous cult. There has even been an arrest of a footballer for abusing a teammate for a misplaced pass.

These are all examples of, frankly, pretty daft actions by the police and none actually went to court and resulted in a conviction. And that, perhaps, is the flaw in the campaign.

Because to abolish the insulting element, while it may stop such silliness, would also leave many more people vulnerable. We live in a very mixed society.

To insult someone for being different should be discouraged, not encouraged. Peter Tatchell might have a thick enough skin to ride insults about being gay, but not all gay people are, so why should the law not protect them?

What about insults on social media? Should we free up people to randomly insult others? What about behaviour intended to insult a whole group, not just an individual? Should the Muslim cleric who ripped up poppies at a Remembrance Day parade be immune from arrest? Let me know your views below… just don’t offend me when you do!

— Tony Freitas is the Head of the Criminal Law Department at McKinnells Solicitors in Lincoln.

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In 1884 an Australian lawyer bought a pleasure yacht. However, although he was in Australia, the yacht was in England. He had difficulty in finding a crew to sail such a small vessel (only 52 feet long) such a distance, but eventually four men agreed to do so. The captain was Tom Dudley, the crew Edwin Stephens, Edmund Brooks and Richard Parker, who at only 17 was the youngest and least experienced.

Some way south of the Equator the yacht was damaged in a storm and sank very quickly. The crew took to the lifeboat, but did so in such a hurry they were only able to take two tins of turnips and the navigation equipment. They had no water. Although they were able to kill and eat a turtle, by the eighth day they were out of food and, having had no water, they were reduced to drinking their own urine.

Two weeks after the sinking they had still had no more food or drink and were 700 miles from land. At this point Parker became unwell. He was in a coma. It seemed his death was inevitable. After some argument between the other three, spread out over several days, Dudley and Stephens killed Parker; one holding him down while the other slit his throat with a knife. Brooks just watched. All three of them then ate Parker’s body parts. Four days later a passing ship rescued them.

On their return to England, they made no attempt to cover up what they had done. They believed that they were protected by a custom of the sea, which entitled them to do what they had done in such circumstances. They were, however, very wrong.

Dudley and Stephens were charged with murder, with Brooks giving evidence for the Crown, although the facts were not much in dispute. The two argued they had a defence of necessity. To survive, they had to kill a man who would have died anyway. The trial judge disagreed and told the jury to find both defendants guilty.

They appealed, but the court of appeal upheld the conviction. Necessity is not a defence, the court said, to murder. As the court pointed out, who is to be the judge of this sort of necessity? What is the comparable value of a life?

So the law stood until 2001 when the Court of Appeal said that the Dudley and Stephens’s precedent was not absolute. In another case, the court had to look at conjoined twins. If surgeons did not operate, they would both die. If they did, one may live but the other would inevitably die. The court said that the surgeon would have a defence to any hypothetical murder charge. However, these exceptions only applies where the inevitable consequence of taking no action is the death of two people whereas taking action would save one and kill the other.

Dudley and Stephens had a moral dilemma. They killed Parker to save themselves. The surgeon had a slightly different dilemma, to kill one baby to save another. In light of the 2001 decision, would the outcome in Dudley and Stephen’s case be different today? Probably not, because they were acting to save themselves whereas the surgeon would be acting to save someone else. But who knows? Either way, these are moral dilemmas few of us would want to face.