There is no doubt that section 5 of the 1986 Public Order Act, a piece of UK legislation, is a menace to free speech and legal rights. This vague and open-ended piece of legislation prohibits ‘threatening, abusive or insulting words or behaviour’ in the vicinity of a person ‘likely to be caused harassment, alarm or distress thereby’.

A motley bunch have fallen foul of this law since its drafting, from Christians for criticising homosexuality to two men for kissing in public; from anti-abortion to anti-capitalist to anti-Scientology protesters; from a man handing out leaflets criticising CCTV cameras to a footballer having a go at a teammate for not passing him the ball. Notoriously, an Oxford student was arrested under section 5 for repeatedly asking a police officer if his horse was gay. So the call by a broad group of high-profile campaigners and politicians, including former shadow home secretary David Davis, for a reform to section 5 is welcome indeed. Basically, section 5 functions as a catch-all for low-level misdemeanour. A 1994 Home Office research study found that the law led to a 70 per cent rise in public-order prosecutions, due to ‘a net-widening effect’ whereby ‘some forms of low-level disorder were for the first time being drawn within the ambit of the criminal law’ (1). Defendants included a man who, unhappy with his restaurant meal, turned to fellow diners and shouted ‘this place fucking sucks!’. Another was a tramp who knocked on somebody’s door shouting that he wanted a glass of water, then fell over and went to sleep.

Section 5 also provides an easy way for the police to nick anybody they want to. The Home Office study noted that section 5 was being used for a wide variety of offences – drunk and disorderly, melee, or assault – but was preferred because of its ‘relative ease of proof’. For example, in a fight outside a pub where there was no victim and nobody would press charges, the police could still get the participants under section 5. If the police couldn’t prove a prosecution to normal standards, they would whip out a section 5. Significantly, many section 5 prosecutions are for ‘offence’ caused to police officers, rather than to members of the public. The classic scenario involves somebody telling a police officer to ‘fuck off’; the officer warns them; the person says ‘I fucking hate the police’, or some such; they are arrested. The Oxford law professor Andrew Ashworth says that this law in effect ‘criminalised disrespect’ (2). Rudeness towards police officers had become a criminal offence.

This use of section 5 continues today, even when swearing has lost any shock value it once had. It was left to the Court of Appeal to overturn the conviction of a young man who repeatedly swore while being searched for drugs; the court ruled that the teenagers nearby were extremely unlikely to have been distressed by his language. Yet the Metropolitan Police commissioner declared himself ‘deeply disappointed’ at this ruling, and said his force would continue to arrest those who swore at officers. The real significance of section 5 is that it marked a new kind of criminal law: a way of prosecuting misdemeanours that are not real crimes, on a lower standard of proof. Section 5 requires no criminal act as such, no violence or threat of violence. Nobody even needs to have been actually harassed or distressed by the defendant’s behaviour. Nor is it necessary for the accused to have intended to cause offence, only to be ‘aware that his behaviour may be’ harassing or distressing.

Section 5-type law now makes up a large portion of our legal system. The main innovation in criminal law over the past decade has been to target low-level misdemeanour, with open-ended and unaccountable powers. Now, half of all crimes ‘brought to justice’ don’t go through the courts. A large portion of these ‘crimes’ would not be defined as such by Common Law standards. Year after year there are ever-vaguer offences, requiring ever-lower standards of proof. Anti-social behaviour orders (ASBOs, introduced in 1998) regulated harassing behaviour, even if nobody had been within sight or hearing of the behaviour, and the person was not aware that their behaviour could be offensive (3). On-the-spot fines (2004) meant that somebody could be punished immediately for ‘harassment, alarm and distress’, so the vague offence need not even be vaguely proven. In 2007, there were over 80,000 fines dished out for the section 5 offence of ‘harassment, alarm and distress’.

The new campaign to reform section 5 proposes the removal of ‘insulting words or behaviour’ from the Public Order Act. This is a good first step, which will do something to limit prosecutions for trivial misdemeanours. Yet arguably the problem with section 5 is not only this stray word, but the fact that it is the first in a new generation of laws criminalising non-criminal behaviour.

So yes, delete ‘insulting’ from section 5 of the Public Order Act. Why not then delete the rest of section 5, which prohibits behaviour that could be construed as ‘abusive’ or ‘threatening’? And delete section 4A, too, which prohibits ‘intentional harassment, alarm and distress’, under which the student who insulted people on Twitter over the ill footballer Fabrice Muamba was recently convicted. We need to turn the spotlight on the half of our criminal law which issues punishments without proper proof, for crimes that aren’t really crimes. Then a campaign against section 5 becomes a campaign to restore fundamental principles to criminal justice as a whole.