How has the law allowed this to happen?
It first happened in the primary school playground.
Some wee kid from my year offended me deeply, so I barrelled after him, across the white-lined tarmac, bellowing my prediction of some violent end for when I caught him. Seeing me hot on his heels, he sprinted towards the grassy knoll, where I slipped on the muddy grass, spoiling my otherwise spotless school trousers — “fuck you” was spat spitefully underneath my breath. It was the first time those words crossed my lips at the tender age of ten, but I made up for being a late bloomer by reaching an impressive level of fluency in my teenage years, under my sibling’s mentorship and constant tutelage.
My point is that I am a swearer. Used right, swearing can be perfect for humour, underlining a serious point (though not for moots) and letting the world know that you just stubbed your toe. But is it a reasonable form of peaceful protest?
Pride and Prejudice (and Public Order Laws)
The summer was politically turbulent to say the least. One of its many consequences was the new-found prominence of Northern Ireland’s largest party, the DUP.
Their social conservatism became extremely well-documented in the weeks following their entry into government, as national press scrambled to pretend they totally understood what had just happened, making the condemnation of the DUP a truly hot topic.
So when London Pride came around only a few weeks later, some took the opportunity to vent their displeasure that the UK government was now held together by the anti-gay rights sticky tape of the DUP.
It was put across with beautiful bluntness — concise and clear. A giant banner saying ‘FUCK THE D.U.P’, propelled into the air with brightly coloured balloons, like a politically-conscious version of Up.
Belfast Pride rolled around the corner soon after. Turning up to this colourful, joyous, beautifully defiant event was one Ellie Evans, a young English charity worker, who’d been working in Belfast for the past few years. She arrived with rainbow paint on her cheeks, a can-do attitude and a ‘fuck the DUP’ placard.
It was very quickly taken off her by Pride parade organisers in Belfast, who said it did not “promote reasoned debate”. This then made the press.
Enter stage far-right, the DUP politician Jim Wells, who is notorious amongst swathes of the country for various legal battles around gay rights and his comments surrounding the LGBT community. In one instance, he implied that gay couples shouldn’t raise children, as it increases the chances of that child suffering abuse — he apologised but argued he was misquoted. A few days later, he had an altercation with a gay couple while canvassing door to door.
So this bastion of morality decided to refer Ellie Evans’ sign to the police; he stated “I told [the police] that it should be investigated under the hate crime legislation. There are 300,000 people in Northern Ireland who voted DUP in the last election and they have a right to be respected. I believe someone’s religious opinion and their political viewpoints have a right to be protected.”
The differing police responses
The Northern Irish Police (PSNI) turned up at Evans’ home and told her she was to be interviewed at the police station under caution. They asked her what her intention behind the sign was, if she felt the F-word was offensive and if it was appropriate to display this word in a public place where children were around.
Evans said she later received a call, informing her that a file had been passed over to the Northern Irish Prosecution Service (PPS — distinct from the CPS), and they would decide if she will be prosecuted for a hate crime or a breach of public order.
Pretty extraordinary stuff.
The Met also received a complaint about the banner which appeared at London Pride. Asked by the Irish News why they are not seeking charges, the Met response was simple: “An officer informed the complainant that the placard did not meet the threshold for a criminal offence, and whilst the allegation would be recorded it would not be investigated.”
So why on earth the difference? Is that borne out by the law?
What the law says
In England and Wales, you have the simple and very effective Public Order Act 1986, which makes it an offence to use threatening or abusive words or behaviour that causes, or is likely to cause, another person harassment, alarm or distress. Now, on its face, this is worryingly wide. But just wait until you see the Northern Irish law.
It is The Public Order (Northern Ireland) Order 1987 (“the order”). For incitement to hatred, you’d need to see part III (“acts intended or likely to stir up hatred or arouse fear”) under article 9 (“use of words or behaviour or display of written material”).
There are two crucial distinctions to note. Firstly, the word ‘insulting’. Section 57 of the Crime and Courts Act 2013 amended section 5 of the 1986 act to remove the word “insulting” from the offence. However, this was never removed from the order, and so merely insulting words are still sufficient in Northern Ireland.
Secondly, what England and Wales also have are the CPS’s specific guidelines for this offence. This is something that the PPS does not have. In a highly critical report from Queen’s University Belfast on Northern Irish incitement to hatred law, it highlights “neither the PPS nor PSNI have any specific written guidance themselves on how to interpret its provisions. In our view this compounds the lack of legal certainty over the scope of part III offences.”
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These two facts give the PSNI far too much leeway to apply the law however they see fit, allowing them to interpret it widely when — I don’t know — a prominent politician from the country’s leading party comes a-knocking.
Incitement to hatred
I will assume for this article that Evans did not misspeak when she said the police told her that the PPS were going to decide which she would be charged with (not whether she would be charged). I assume by “a hate crime or breach of public order”, they mean article 9 or article 19 respectively. Having gone through both, I cannot understand at all how the police could feel the case falls under either. In each, there is one clear, irrefutable reason why it cannot be applicable, and yet the police are still seeking a charge. So I’m probably missing something — if so, the ever helpful Legal Cheek comment writers will come to my aid, I hope.
Reading article 9 on the face of it, it is arguable Evans has breached it. She arguably displayed insulting words which either were intended to stir up hatred against the DUP for holding back gay rights, or in all the circumstances, such hatred was likely to be stirred by her actions. This would open the fraught discussion about if wanting to inspire political disgust at a political party via peaceful protest could ever amount to an intention to stir up hatred against those politicians or its voters.
Thankfully, we don’t need to. Article 9 must be read in conjunction with article 8, which defines ‘hatred’ like so: “hatred against a group of persons . . . defined by reference to religious belief, sexual orientation, disability, colour, race, nationality (including citizenship) or ethnic or national origins”. Unless they pursue the spurious argument that the DUP is so wedded to its evangelism that saying ‘fuck the DUP’ is the equivalent to attacking that strain of Christianity, I have no idea how they square that circle.
Breach of public order
If you look at article 19 of the order, you’ll note two arms to it. Evans could arguably fall under the first of the two necessary conditions of the offence; she arguably used “insulting words” in a public place/during a public procession.
The problem lies with part two (she intended to breach the peace or a breach of the peace/public disorder was likely). If you can provoke the voters of a party into public disorder by simply cursing the destination of their vote with some cardboard and a felt-tip pen, the problem lies with the voters, not the ‘provocateur’. No prosecution service or court would accept that that is made out on the facts. R v Howell (1982) is recognised as accurately defining ‘breach of the peace’ — it requires violence, and as much of a powder-keg as some misguided mainlanders may feel Belfast political discourse is, I think even the most ill-informed would recognise the gargantuan stretch that meeting this second limb on these facts would be.
So what next?
No doubt some who have followed me down this path for this long are wondering why on earth they took the time — the answer to the question of whether it is a crime is clearly ‘no’, so why are we worrying?
Well, it’s not that simple. A UK police force has started using Public Order legislation to crack down on peaceful condemning of a controversial, yet powerful, political party. They scampered after a young woman and are now asking the PPS to bring charges against her.
To put this into context, I’d like to raise again the absolutely damning report by Queen’s University on the current state of incitement to hatred law. It highlights how pathetically it is letting down the most vulnerable in society.
In ten years, the PSNI has only ever charged 91 people for incitement to hatred — to put that into context, the PSNI recorded 1,061 “racist incidents” in the past year alone. So despite hardly ever taking people to task for these issues, they have done so for something as mundane and harmless as saying ‘fuck the DUP’.
Not only this, but the PSNI seem to be continuing their new trend — supposedly they are now investigating similar banners carried by some in this autumn’s pro-choice march through Belfast.
Be in no doubt — the European Court on Human Rights (ECtHR) will be on the side of Evans.
Famously in Handyside v UK (1976), the ECtHR made clear that “Freedom of expression… is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population”. While England’s current law had “insulting” removed from the section 5 offence to make sure it complied with international standards, if the PSNI continue to interpret it like they have with Evans, this highlights the findings of the Queen’s University report — that NI’s law does not meet those same standards.
If this madness progresses past the PPS stage, it is vital that the Equality Commission of Northern Ireland takes up Evans’ case. Additionally, our incitement to hatred laws are desperately in need of a revamp. One of the reasons having a party like the DUP claim so feebly to be a victim of incitement to hatred isn’t just their track record of homophobic pronouncements in recent years, but the fact that politicians like Wells have sat idly by in the Northern Irish Assembly with unreformed laws which leave minorities without the necessary legal protection; that which is demanded of international standards. For instance, NI is the only part of the UK to not introduce the Stephen Lawrence reforms from the McPherson inquiry.
All in all, on the law, I would be dumbfounded and bewildered if the PPS decided to take this case any further. The law does not stack up, and the case calls into question how the police interprets it, and how it uses its discretion in deciding which cases to take forward.
I love a good political debate as much as the next nerd, and it’s a right worth avid protection; whether it be a pompous exposition about neo-liberalism or the blunt use of a four letter word. I, for one, will always prefer the latter, no matter what the PSNI thinks.
Michael Walker is a law graduate from the University of Cambridge.
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